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Global Perspectives

on Human Rights:
Oxford Human Rights
Hub Blog (2nd edition)

edited by Laura Hilly & Richard Martin

FACULTY OF

L AW

2014-2015

Table of Contents
3

Message from the OxHRH Director and OxHRH Blog Managing Editor

OxHRH Editorial Team 2014-2015

The OxHRH Blog at a Glance

Message from the Editors of Global Perspectives on Human Rights

Global Perspectives on Human Rights Editorial Team

Chapter 1: Access to Justice

10

Introduction Laura Hilly

12

New Employment Tribunal Fees and Discrimination: UNISON v Lord Chancellor; Equality and Human Rights Commission

13

The Impact of Fees in the Tribunal

13

A European Right to Legal Aid?

15

The Irrelevance of Residence: The Unlawful Residence Test for Legal Aid

16

Cutting Corners: The Procedural Illegality of Legal Aid Cuts

17

Presumptive Costs Orders: A Threat to Public Interest Interventions

19

Public Interest Lawyering in Times of Austerity

20

Clinical Legal Education as an Access to Justice Innovation

21

Valuing the Work of Community Lawyers to Resolve Systemic Problems The Productivity Commission Report on Access to Justice
Arrangements in Australia

24

Chapter 2: Jurisdiction & Scope

26

Introduction Helen McDermott

28

Where will the US go after Kiobel?

28

Lessons from Daimler

29

Human Rights in Disputed Territories Affixing Responsibility

30

Investigating Crimes Against Humanity South Africas Embrace of Universal Jurisdiction

32

Brighton and Beyond Where Next for the European Convention on Human Rights?

33

Why the UK Should Embrace the EU Charter of Fundamental Rights

34

Cyprus v Turkey: Arming the European Court against States Complacency?

35

Jones and Others v UK: Immunity or Impunity?

36

Right to Justice Deprived by State: Case of Manorama Vs AFSPA from Manipur, India

37

The Geography of International Law and the Cyber Domain

39

Nonsense on Stilts? Tommy the Chimps Legal Battle for Non-Human Person Rights in the New York Courts

40

Chapter 3: Institutional Frameworks

42

Introduction Max Harris

43

Addressing the Critical Funding Gap at the UN Human Rights Office

44

Why Should Anyone Care About The UN? The UN Forum 2014

45

The South African Public Protectors Remedial Powers: A Need for Clarity

46

Human Rights in the UK Media: Representation and Reality

47

The Handbook of Human Rights in Northern Ireland: Where Are We Now?

48

Building Institutions for the Long-Term: the Need for Normative Transparency

49

The Missing Human Rights Impact Assessment of European Union Free Trade Agreements

50

Third Conference of States Parties to the American Convention on Human Rights: Another Brick on the Wall (or is it another brick
off?)

51

The Challenges for Judicial Appointments in India

52

The Mexican Human Rights Constitutional Amendment and Impunity: Victims in a Labyrinth

54

Chapter 4: Criminal Justice

56

Introduction Richard Martin

58

Reporting Restrictions in Criminal Cases Involving Juveniles

59

Righting Wrongful Convictions: Is Anguish Enough?

60

Equal Treatment for All Except the Highest?

Policing
61

The Duty of National Authorities to Investigate Allegations of Torture

62

A Guide to the Perpetuation of Human Rights Violations: Police Violence and Impunity in Brazil

63

Impunity for Police Violence: Nine Years Since Jhonny Silva-Arangurens Death
Assisted Dying

65

Prosecuting in the Public Interest: CPS Guidelines from Assisted Suicide to Social Media

66

Moral Arguments on the Right to Die: Should Courts Intervene?

67

Canadian Constitutional Challenge to Prohibition on Assisted-Dying

68

Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

69

Implementation of Carter will be the Ultimate Gauge of Success of the Decision


Death Penalty

71

A New Opportunity for the UN to Move Forward the Global Abolition of Death Penalty

72

Capital Punishment in China: Room for Cautious Optimism?

73

Indian Supreme Court Changes Stance on Death Penalty: Holds Delay to be a Ground for Commutation

74

Meriam Ibrahim Saved from 100 Lashes and the Death Penalty

75

Federal Judge Strikes Down California Death Penalty as Unconstitutional

77

Glossip v. Gross: SCOTUS to Consider Oklahomas Lethal Injection Protocol

78

Executing the Intellectually Disabled: A Stronger Prohibition


Whole Life Sentences

79

Hutchinson v UK A Change in Direction on Whole Life Orders?

80

Whole Life Sentences in Hutchinson v UK Compromise or Concession?

81

Throwing Away The Key Whole Life Sentences in the Court of Appeal

82

Court of Appeal Affirms Ability to Pass Whole Life Tariffs for Murder

83

Perpetual Life Sentences, Reformation and the Indian Supreme Court


Prisoners Rights

84

Women in Prison: The Particular Importance of Contact With the Outside World

85

Prisoner Rights at the Forefront of Canadian Debates

86

Restricting Receipt of Rehabilitative Resources: The Prisoner Book Ban

88

Chapter 5: Security

90

Introduction Fiona de Londras


Counter Terrorism

92

Independent Review of Terrorism Laws: a Brief Introduction

93

Accounting for Rights in EU Counter-Terrorism

93

Anti-Terrorism Review Reform: Some Considerations

94

The UN Sanctions Regime Against Terrorists: Suggested Changes

96

UN Sanctions: Possible Changes?

97

Partially Clandestine Criminal Trials Risk Standardising Secrecy


Mass Surveillance

98

Managing Secrecy: R (Miranda) v SSHD

99

The Legality of Mass Surveillance Operations

100

The Supreme Court of Canada Affirms Privacy as Anonymity

101

CJEU Holds the Data Retention Directive Invalid

102

One May Not Retain Personal Data Forever: The Judgment in Google Spain

104

Will Australia Learn from the EUs Mistakes on Data Retention?

104

Respect for Private Life under Article 8 and Covert Filming Sderman v Sweden
Conflict

106

Human Rights and the Arms Trade Treaty

107

Classic Human Rights Law Territory: Why the HRC Need to Talk about Drones

108

Iraq Needs Incisive Measures from the UN Security Council

109

Dignifying the Most Vulnerable In and Through Security Council Resolution 2139

Table of Contents
112

Chapter 6: Democracy & Voting

114

Introduction Alecia Johns

116

The Not-so-Paramount Right to Vote

117

The Worrisome Casual Approach to (Dis)enfranchisement

118

UK vs ECtHR: The Prisoner Voting Saga Continues

119

Migrants Voting at the Local Level is a Human Right

120

Where Have All The Expatriates Gone?

121

Malawis Electoral Fiasco

122

A Watershed Case for African Human Rights: Mtikila and others v. Tanzania

123

McCutcheon v FEC: The Harvest of Pernicious Seeds

124

Contributions Caps and the First Amendment

125

Is An Obsession With Foreign Investment Eroding Democracy in Papua New Guinea?

128

Chapter 7: Expression, Association & Assembly

130

Introduction Gautam Bhatia

131

Constitutional Protection for the Right to Strike in Canada

132

A Human Rights Defence of Hong Kongs Occupy Central

133

The Violence Must Stop Abuse of Police Power in Hong Kongs Democracy Protests

134

Why the U.S. Needs a Magnitsky Act for Venezuela

135

The Criminalization of Protests: Repression and Human Rights Abuses in Venezuela

136

The Right to Peaceful Protest in Ethiopia

137

Right to Protest: Developments at the Inter-American and UN Systems

138

Egyptian Human Rights Groups Face Difficult Choices After Al-Sisis Ultimatum

139

Repression of Nonviolent Activism in Syria

140

Constitutional Court of South Africa: Blunting the Impact of Electoral Law on Freedom of Expression

141

Racial Discrimination Act and Free Speech Carte Blanche or Fair and Reasonable Where are Human Rights in all This?

144

Chapter 8: Religion

146

Introduction Julie Maher

147

Meriam Ibrahim is Freed: Weaving together Law, Politics and Civil Society

147

International Law and the Denial of Minority Status to Indian Muslims

149

Translating Questions Of Religion Conversions to Issues of Human Rights: The Proposed Ban on Religious Conversions in a Secular
Indian State

150

Using Faith to Reinforce Human Rights of Bahs in Iran

151

Conform or be Confined: S.A.S. v France

152

Professor Frances Raday Comments on SAS v France

154

SAS v France in Context: the Margin of Appreciation Doctrine and Protection of Minorities

155

Clash of Rights at Centre of Canadian Law School Controversy

156

Law Society of Canadian Province Nova Scotia is Found to Have Overstepped its Mandate, Violating Religious Freedoms

157

Navigating the Troubled Waters of Religious Accommodation

158

Religious Anti-Gay Refusal Valuing Dissent Without Making it Lawful

159

Conscientious Objection to Military Service in International Human Rights Law

161

Freedom of Religion and Belief in Turkey

162

Chapter 9: Migration, Asylum & Trafficking

164

Introduction Rachel Wechsler

166

Modern Slavery Bill A Brief Review

167

Scotlands Answer to Modern-Day Slavery

168

Campsfield Immigration Removal Centre: 20 Years Too Long

168

Government Lodges Plans to More Than Double Oxfordshire Immigration Removal Centre

170

Hounga v Allen: Trojan Horse Comes to the Rescue of Illegal Migrants

171

What Traffickers Know that the Court of Appeal Does Not

172

The Business of Traffic in Humans

174

Judicial Review of Migrant Detention in Europe: In Search of Effectiveness and Speediness

174

Europol and the Fight Against Human Trafficking

176

High Time for Europe to Offer Temporary Protection to Refugees from Syria?

177

Migrant Push Backs at Sea are Prohibited Collective Expulsions

178

United Nations Human Rights Council: Commission of Inquiry into Human Rights Abuses in the Democratic Peoples Republic of
Korea

179

Navigating the Turkish Legal Regime: Syrian Refugees in Istanbul

180

Palestinian Refugees in Syria: A Primer For Advocacy

181

Implementation of Tripartite Agreement on Hold

182

Angel: Afro-Honduran Migrant Tortured and Imprisoned in Mexico

183

Providing Syrian Survivors of Torture Access to Rehabilitation Services

185

The Unified Screening Mechanism: Hong Kong to Assess Refugee Claims Alongside Torture Claims

186

Second Strike and You are (Finally) Out? The Israeli Supreme Court quashes (again) the Prevention of Infiltration Law

187

Detention of African Asylum Seekers in Israel: Welcome to Round Three

188

Internally Displaced Persons in Ukraine

190

Chapter 10: Children

192

Introduction Elena Butti

194

Practices Harmful to Women and Girls Joint CEDAW and CRC General Recommendation/Comment

195

The Uncomfortable Place of Inter-Country Adoption in the Human Rights Arena

196

The Uncertain Status of Child Rights in the UK

197

Children Gain Access to International Justice

198

Geneva II, Politicking and Possibility for Syrias invisible 43%

199

Towards the Abolition of the Detention of immigrant Children?

200

Children in an Age of Austerity: The Impact of Welfare Reform on Children in Nottingham

202

British Schindler and a History of Neglect of Refugee Children

204

CHapter 11: Equality

208

Introduction Meghan Campbell and Karl Laird

210

The Equality Agenda in 2015: Part I- The Constitutional Issues

211

The Equality Agenda in 2015: Part II- Access to Justice

212

The Equality Agenda in 2015: Part III- Advancing Equality

213

Rights Protection in 2014: A Review of the Indian Supreme Court

214

Public Consultation on the Overhaul of Hong Kong Anti-Discrimination Laws

216

Does Affirmative Action Create Unfair Advantage?

217

Everyday Utopias and Challenging Preconceptions


Women and Gender

218

International Womens Day: Women and Girls Struggle for Equality in the Courts

219

Inspiring Change Through Law for International Womens Day

220

The Bludgeon Nominees in the Gender Justice Uncovered Awards 2015

221

Winning Decisions in the 2014 Gender Justice Uncovered Awards

222

How Can Judges be Held Accountable?

223

Rethink Needed as New Australian High Court Justice Appointment Seems to Maintain Gender imbalance

224

Judicial Appointment of Women on the Decline in Canada and Australia

225

Gender and the Judiciary: Bosnia and Herzegovina

226

Belgian Parliament Introduces Sex Quota in Constitutional Court

228

Revisiting Mass Sterilisation in India Population Management or Menace?

229

The Rhodes Project: Celebrating Many Versions of What Women Can Be

230

Menopausal Women Fear Discrimination in the Workplace

231

Pregnancy Discrimination in the Australian Workplace

232

Recognising Maternity Leave as a Human Rights Obligation

233

Improving the Law for Pregnant Women and Working Parents

Table of Contents
234

The Family Agenda: Promoting Traditional Values in the Human Rights Council

236

Burwell v Hobby Lobby A Narrow Decision?

237

Breaking the Cycle of Gender Inequality

238

Thematic Report Economic and Social Life with a Focus on Economic Crisis

239

Girls with Books, Better Laws, Pave the Way Ahead

241

The Uneasy Decision in A and B v Secretary of State for Health

242

Northern Irelands Human Rights Commission Granted Leave for Judicial Review to Challenge the Countrys Near-Blanket Ban on
Abortion

243

Stereotyping as Direct Discrimination?

244

What Has the European Union Ever Done for Women?

245

Older Homeless Women in Australia

246

(In)justice Served? Lori Douglas Case Leaves More Questions than Answers for Canadians

247

GamerGate and Gendered Hate Speech

248

Harassment Against Women Goes Online: the Problem of Revenge Porn

249

UK Efforts to Criminalize Revenge Porn: Not a Scandal, but a Sex Crime

250

CEDAW Issues a Historic Ruling in a Gender Violence Case

252

Mega Event Tactics: Brazils Sex Industry During the World Cup 2014

253

Male Rape in Armed Conflicts: Why We Should Talk About It

254

Rape and the Failure of the Criminal Justice System

254

Sexual Violence in Modern Myanmar

255

Are Womens Rights Really Human Rights?

256

Omnipresent in the EU: Violence Against Women

258

The Women Empowerment and Gender Equality Bill: Can It Live Up to Its Name?
Race and Ethnicity

259

Concerns about Greece from the European Commission against Racism and Intolerance

260

Recognising Travellers Needs: The Courts Begin to Move

261

A House Divided: Grappling with Affirmative Action in South Africa

262

Brazils Laws on Quotas and the Road to Racial Equality

263

Schuette v BAMN: a Need to Rethink Equal Protection

265

The New Barbarians: Bulgarians and Romanians at the Gate!


Disability

266

Mainstreaming Disability in Development: The need for a Disability-Inclusive Post-2015 Development Agenda

266

Indian Lip Service to the UNCRPD: Examining the Persons with Disabilities Bill 2014

268

The Problem of Progressive Realization Protecting the Rights of the Disabled in Jamaica

269

A Successful First Instance Challenge to Bedroom Tax

270

Schuette: The Latest in the Affirmative Action Saga

271

Nigerian Standup Comedians and Differently Abled Persons from a Human Rights
Poverty

272

First Lady of Rwanda Women and Poverty: A Human Rights Approach

273

Equality Interrupted: The Rajasthan Panchayati Raj Act, 2nd Amendment, Ordinance, 2014 and the Selective Disqualification of
Candidates

274

P v Cheshire West and Chester Council: Shaping Deprivations of Liberty

276

Cheshire West and the Repugnant Conclusion


LGBTIQA

276

Searching for the T in LGBT Advocacy

278

Gays: a Prohibited Class in CARICOM?

279

Ugandas anti-homosexuality law and our cultural wars

280

From Torment to Tolerance and Acceptance to the Everyday: The Course of LGBT Equality in the UK

281

Scotlands Gay Rights Journey

283

Naz and Reclaiming Counter-Majoritarianism

284

Over to you, Parliament The Significance of the Australian High Courts Judgment on Same-Sex Marriage

285

Reviewing Koushal: Counting Down the Errors Apparent on the Face of the Record

286

Surrogacy, Same-Sex Couples and the Privatisation of Regulation in Israel

287

What Next for LGBT Equality?

288

Hmlinen v Finland: The Transgender Divorce Requirement in Strasbourg

290

Curing the Koushal Malady

290

Indias Third Gender and The Kaushal Problem


Indigenous Rights and Human Rights

292

The Right to Prior Consultation of Indigenous Peoples in the Americas (Part I)

293

The Right to Prior Consultation of Indigenous Peoples in the Americas (Part II)

294

Establishing Aboriginal Title in Canada: Tsilhqotin Nation v British Columbia

295

Indigenous Ecuadorians Bring Protracted Legal Battle Before the Supreme Court of Canada

298

Chapter 12: Socio-Economic

300

Introduction Sandra Fredman


Education

302

South African Judge Lays Down the Law on the Right to a Basic Education

303

Victory in first Certified Class Action Sees Teachers Appointed and Paid

304

Judicial Experimentation and Public Policy: A New Approach to the Right to Education in Brazil

305

Implementing the Right to Education Through the Courts: The Legal Resources Centre and Oxford University Host Workshop on
Remedies and Enforcement

306

Court Makes Unprecedented Step Appointing Claims Administrator to Ensure State Compliance with Court Order
Housing

308

No Compromise on the Right to Adequate Housing: UN Condemnation of UK Austerity Measures

309

The Zulu Case: Threats to Squatters Rights in South Africa

310

Right to Housing Debate Stalled by Canadian Court


Healthcare

311

The European Social Charter in Austerity Europe: Damning Conclusions on the Right of Access to Healthcare in Spain

312

Womens and childrens health: Evidence of impact of human rights

314

Aboriginal Right to Pursue Traditional Medicine Recognised by Canadian Judge

315

When Policing Meets Health: International Experts call for Improved Alliance between Law Enforcement and Public Health
Social Security

316

Kong Yunming v The Director of Social Welfare: Constitutional protection of social welfare rights in Hong Kong

317

McDonald v UK: The ECtHR on Social Care Provision

318

Property Rights, Pension Claims, and the Problematic Features of the ECtHRs Proportionality Review

320

Womens Rights to Social Security and Social Protection

320

First Nations Child Welfare Funding Before National Tribunal


Other Topics in Socio-Economic Rights

322

Not reaping the benefits: the United Kingdoms continuing violation of Article 121 of the European Social Charter

323

Is There a Hierarchy of Human Rights and Human Rights Reporting?

324

Going Hungry? The Human Right to Food in the UK

325

Finance and Human Rights: Developments in Brazil and Peru

326

The Benefits of Using Equality and Non-Discrimination Strategies in Litigating Economic and Social Rights New Guide Published

328

Chapter 13: Labour

330

Introduction Barbara Havelkov

332

Women at Work Positive Obligations for Positive Results

333

The UKs Widening Gender Pay Gap What Must be Done

334

When Does Being Better Qualified Provide you with Fewer Opportunities?

335

What Will the Flexible Working Regulations 2014 Mean for Employers and Employees?

336

The Regulation of Casual Work and the Problematical Idea of the Zero Hours Contract

337

RMT v United Kingdom: Sympathy Strikes and the European Court of Human Rights

338

Safety of Sex-Workers Again at the Centre in Canada (Attorney General) v Bedford

339

Sex Workers Equally Protected from Sexual Harassment as Other Workers Says New Zealand Case

340

The CJEUs Ruling in AMS and the Horizontal Effect of the Charter

341

South African Informal Traders Forum and Others v The City of Johannesburg and Others: A Promising Start by the South African
Constitutional Court

342

The Plight of Indo-Pak Fishermen and the Need to Appreciate Economic Rights

343

Vergara Ruling Poses Problems for Separation of Powers and Academic Freedom

Table of Contents
Chapter 14: Business & Finance
348

Introduction Kate Mitchell

349

The Emergence of Business and Human Rights in the EUs External Relations

350

Vulture Funds: the Real Dimension of the Controversy from a Human Rights Perspective

351

The Vulture Funds Issue and the Bankruptcy Law Process for States in Economic Crisis

Chapter 15: Transitional Justice


356

Introduction Heather McRobie

357

Accountability for Human Rights Violations During Dictatorship in Uruguay

357

Colombian Victims: Changing the Rules of the Game

359

50 Years Later, Still in Search of Truth: Challenges Facing Truth Commissions in Brazil

360

Mind the Values Gap: Do We Really Believe in the Constitution?

361

Will Tunisias Truth and Dignity Commission Heal the Wounds of the Authoritarian Past?

Chapter 16: Development & MDGs Post 2015


366

Introduction Jaakko Kuosmanen

367

The Sustainable Development Goals: A New Vision of Development?

368

Charting the Future of Development: A Tale of Two Agendas

369

Civil Society Wants its Voice Heard in Post-2015 Development

370

An Unsecured Commitment: Security and Justice in the Post-2015 Development Agenda

371

Against Happiness: Why Happiness is not a Good Measure of Progress

372

Chinese Environmental Protection Law The Illusion of Enhanced Human Rights Safeguards

373

Should There Be A Human Rights Approach for Environmental Protection?

376

Image Credit

Message from the OxHRH Director


accessibility of the OxHRH Blog for audiences arriving in
this space from their own local, national and international
perspectives, equipped with varying interests and expertise.
It has also been a very democratic space. Our contributors
range from the most senior in the field professors,
senior counsel and judges, UN special rapporteurs to
those at the beginning of their careers, including graduate
students. We have also particularly welcomed the unique
perspectives of civil society organisations, NGOs and public
interest litigators.

When we launched the OxHRH Blog in June 2012, we


had a clear aspiration: to offer an intellectual space that
could be resourced, coloured and shaped by contributors
from all over the world, who could share their knowledge of
cutting edge new human rights developments with others
in the global human rights community. This vision rapidly
materialised. Since our launch in 2012 we have had posts
relating to more than 65 different jurisdictions, written by
contributors based in more than 40 different countries.
Each blog is carefully written to a very high standard by an
expert in its subject matter. But what is so striking is that the
result is more than just a colourful patchwork. Themes and
patterns have emerged spontaneously. It is for this reason
that we decided to create an annual anthology so that our
global community can see the whole picture that emerges
from the fragments. Our first anthology appeared 18 months
ago and was warmly received. In this second edition of
Global Perspectives on Human Rights, we have taken a
step further. We have invited academics from Oxford and
elsewhere to write introductions to each chapter highlighting
the thematic connections and evaluating the developments
which emerge. The result is a multi-authored work of
extraordinary colour and texture, created by all its many
contributors and shaped by our commentators.
As ever, our blogs are characterised by their consistently
high quality. Our skilful editors carefully select, review
and edit each contribution to ensure the highest scholarly
standards of analysis of human rights law. The strict
word limit means that authors must focus on refining their
arguments and making their points quickly and incisively.
It also means that our readers can be kept up to date on
a daily basis while at the same time being assured of high
quality analysis. Particularly important to us has been the

As you scroll through the pages and read posts of interest,


I hope the new layout and arrangements of posts into
chapters will encourage you to bounce freely between topics
and ideas from across the globe, recognizing the themes
and connections which lie within and between chapters.
The 16 themes we have identified for this anthology differ in
interesting ways from those selected for the first anthology,
reflecting the constantly evolving nature of human rights
developments. The chapters in this collection range from
important constitutional issues such as access to justice,
jurisdiction and institutional frameworks, through to civil and
political rights such as those associated with criminal justice,
security, democracy, freedom of speech, and religion, to
equality rights, socio-economic and labour rights. We have
seen a particularly vivid focus on childrens rights as well
as migration, asylum and trafficking. This years anthology
also reflects the growing human rights focus on business
and finance, transitional justice, and development. We hope
that the comparative dialogue created and shared in these
chapters will help us all develop our own approaches to
these issues, and that the collection as a whole will provide
a useful resource to practitioners and policy makers working
in the area, as well as a reference point and teaching
resource for academics.
The 2015 edition of Global Perspectives on Human Rights
could not have happened without the effort of the OxHRH
team. At the forefront has been Laura Hilly, Managing Editor
of the OxHRH Blog and Deputy Director of OxHRH, whose
extraordinary imagination, energy, inspiration and hard work
have made the blog the exciting and challenging space it is.
With her in the editorial team and helping to drive forward
the anthology has been Richard Martin, our very talented
and energetic editor who has put so much effort and thought
into helping Laura steer the anthology to publication. Thanks
are also due to Kira Allmann and Heather McRobie for all
their hard work as sub-editors of the collection. My great
appreciation and admiration goes too to the editorial team
led by Laura Hilly (2012 2015); Karl Laird (2014); and
Claire Overman (2014); and comprised of staff editors Claire
Overman (2013 2014) Rachel Wechsler (2013 2014)
Chintan Chandrachud (2013 - 2014) Heather McRobie
(2015) Richard Martin (2015). Many thanks for the time,
commitment and energy you have invested in the OxHRH
Blog to ensure its ongoing success.
We owe an enormous amount to Gullan & Gullan, the
South African brand-based communication agency, and in
particular Kath McConnachie and Carli Schoeman whose
creativity, vision and patience have been so important to
the OxHRHs growth and this anthology. Many thanks to
you. My particularly warm thanks go too to the rest of our
OxHRH team, Deputy Director Meghan Campbell and our
Administrator Zoe Davis Heaney.

OxHRH Editorial Team


2014-2015
Our funders have also been central to everything we
do. Particularly helpful has been the British Academy,
which awarded the Hub OxHRH the prestigious five year
Additional Research Project Grant to fund our editors.
Many thanks too to the Bertha Foundation for their
ongoing support and to Oxford University Press which
has supported the printed copies of the anthology.

Managing Editors:

In aspiring to its global inclusivity and appreciation of


human rights law issues, the OxHRH Blog benefits
greatly from the contribution of its volunteer Regional
Correspondents. By promoting the OxHRH Blog in
jurisdictions whose experiences of human rights law may
be lesser known to readers, by reason of global situation
or linguistic barriers, the very universality of rights and
the internationality of their claim becomes reflected in
the diverse origins and focus of the posts. As I sit and
write in Oxford, I send warm regards and thanks to our
Regional Correspondents in Brazil (Thiago Amparo)
and Latin America (C. Ignacio de Casas), East Asia
(Sebastian Ko), the Commonwealth Caribbean (Alecia
Johns), Southern Africa (Tabeth Masengu), South Africa
(Shanelle van der Berg) and Western Europe (Adlade
Remiche).

Richard Martin (2015)


Heather McRobie (2015)
Chintan Chandrachud (2013-2014)
Claire Overman (2013-2014)
Rachel Wechsler (2013-2014)

Many thanks too to the expert commentators on the


individual chapters who have helped craft the individual
posts into a coherent whole. Last, but certainly far
from least, Id like to reiterate how much we value and
appreciate all of those who read, contribute and promote
the OxHRH Blog. The OxHRH Blog is a forum to be
resourced, coloured and shaped by you.
It is with great pleasure that I present to you the second
edition of the Oxford Human Rights Hubs Global
Perspectives on Human Rights.
Sandra Fredman
Rhodes Professor of Law, Oxford University
Director of the Oxford Human Rights Hub

Laura Hilly (2012-2015)


Karl Laird (2014)
Claire Overman (2014)
Editors:

Regional Correspondents:
Thiago Amparo (Regional Correspondent for Brazil)
C. Ignacio de Casas (Regional Correspondent for Latin
America)
Sebastian Ko (Regional Correspondent for East Asia)
Alecia Johns (Regional Correspondent for the
Commonwealth Caribbean)
Tabeth Masengu (Regional Correspondent for Southern
Africa)
Adlade Remiche (Regional Correspondent for Western
Europe)

The OxHRH Blog at a Glance

Message from the Editors of Global


Perspectives on Human Rights
When it comes to online resources, those of us interested
in tracking the developments in human rights law are
increasingly spoilt for choice. Just a click away from many
of us are the well respected case comments and articles
that line the pages of law reviews, while our inboxes and
twitter feeds quickly prompt us to follow up posts appearing
on various blogs and articles starring on the websites of
national newspapers. The reporting of human rights issues
online has become a busy, varied and fast moving space.
That such a space has emerged is very encouraging for
those of us keen to see human rights law discourse and
debate flourish and mature in the public arena. Where
does the OxHRH Blog fit within all of this though? What
does it offer human rights researchers, practitioners and
policy makers navigating these online resources? The
OxHRH Blog was born out of an instinct that, despite such
developments, a space remained for a dynamic forum
where those interested could share cutting edge analysis of
developments in human rights law across the world. Rooted
in legal analysis and reaching across the globe through our
contributors and readers and the issues they discuss, the
OxHRH Blog offers a distinctly valuable contribution in the
form of its concise, accessible and consistently high quality
entries from many jurisdictions.
The same interest in, and commitment to, human rights
issues that fostered the creation and growth of the OxHRH
Blog has also encouraged the OxHRH to explore what other
initiatives and programmes could extend such dialogue
and exchange of ideas around human rights law issues. In
2014 we published the first edition of Global Perspectives
on Human Rights, showcasing the first 18 months of the
OxHRH Blog; in 2015 we ventured into new online digital
spaces, enhancing dialogue on human rights law through
live webinars and a new podcast series RightsUp.
Inspired by these new projects and the growing confidence
instilled by their success, we were once again keen that
the anthology we published this year should not just be
a collection of (high quality) posts downloaded from the
OxHRH Blog, but something more than that. It too should
be an extension of the OxHRHs very aim to not only raise
awareness and promote discussion of human rights law
issues, but also to make connections between developing
themes and trends as they develop on an eclectic global
stage. Our ambition for this edition of Global Perspectives
on Human Rights then, has been to offer our readers and
contributors, as well as those who are perhaps new to
the OxHRH Blog, another forum in which the ideas and
curiosities, the concerns and aspirations raised over the last
year could be collected, reviewed and reflected upon. This
creative process has found expression in the how the posts
have been selected, categorised into chapters, analysed in
their individual introductions and ordered within them.
And in an attempt to seize this reflective opportunity, this
year we encouraged those connected with the OxHRH
and human rights at the University of Oxford to return to
the posts on their areas of interest and expertise and to
re-engage with them in the form of chapter introductions.
In casting their critical eye over the posts in each chapter
and the topics they raise, the authors of the anthologys
sixteen chapter introductions have produced authoritative

overviews, outlining the issues and central questions that


lie ahead for the reader. In doing so, it is hoped these
introductions will not only entice readers to delve into
the analysis contained in the substance of the posts but
also stimulate further discussions and reflections on the
issues raised and how they connect with other chapters in
the anthology. We would like to reiterate our thanks to all
the chapter introduction authors who responded with the
enthusiasm and expertise that had encouraged us to first
approach them to write for this anthology.
This edition of Global Perspectives on Human Rights is the
culmination of this attempt to collect, review and reflect on
the posts contributed to the OxHRH Blog from January 2014
to March 2015, structured around 16 central topics, which
form the chapters. Similar to last year, it serves primarily as
an e-resource, allowing the ideas and thinking contained
within to be freely accessible to the widest possible
audience. So too should we acknowledge again this year
that categorisation of often overlapping and interconnected
themes is an inherently difficult and imperfect task.
Chapters in this latest edition vary from last years, reflecting
changes in themes discussed, as well as the editors own
preferences for identification and demarcation of posts.
Nonetheless, we hope that each of these chapters will prove
useful to readers by organising, in some logical way, this
rich and diverse body of work and enable common themes
to emerge both within and across the chapters. Indeed,
we also hope the anthology serves to highlight similar
themes central to contemporary human rights law that are
truly global. And that through such comparative dialogue
and sharing of experiences based on our own countries
and regions, struggles and victories, we can all benefit in
learning how we might approach these issues.
This global perspective and the comparative analysis
it enables is demonstrated well both within and across
chapters. Posts in the migration, asylum and trafficking
chapter, for example, describe the journeys of irregular
migrants in the UK, other parts of Europe, Mexico, Israel
and Syria, and courts and governments responses to their
treatment and detention. Similarly, posts collected under
the topic of criminal justice allow direct comparisons of how
appeal courts and prosecutors have dealt with the issues
of assisting dying (UK and Canada), the death penalty
(US, India, China) and whole life sentences (UK, Europe
and Canada). On the topic of institutional frameworks, the
collection of posts encourages the author of the chapters
introduction to identify those organisations across the world
that serve noble purposes, but require greater support of
some form, and those that make a more radical case for
reform of specific human rights-related institutions.
There are also central themes that rumble below the surface
of many of the chapters and serve as the links to topics that
many initially appear comfortably settled within their own
chapter. Perhaps the most obvious are economic policies
(particularly the squeeze on public funding), citizenship,
gender and race, each impacting in their own way on topics
falling within, for example, chapters on access to justice,
socio-economic rights, labour, business and transitional
justice.
While this second anthology is certainly more than the

Editorial Team
sum of its collected posts then, unsurprisingly much
of what makes it a uniquely valuable resource reflects
the very strengths of the OxHRH Blog itself. With help
and guidance from the editorial team in Oxford and
Regional Correspondents, contributions regularly arrive
in our inboxes from across the globe. Since its inception
in 2012, the OxHRH Blog has posted an impressive
792 posts. These are written by more than 325 expert
contributors, situated in over 40 different countries
ranging from the UK to Thailand, Romania to Uruguay,
Mexico to Qatar, Rwanda to Spain, Papua New Guinea
to Bangladesh, India to Australia, and many, many more.
More than 50% of our contributors are based outside of
the UK. We receive more than 14,000 unique visitors to
our site each month.

General Editors:

This edition of Global Perspectives on Human Rights


showcases 262 original contributions from the last year.
Once again, it includes contributors from various fields,
backgrounds and level of seniority. This democratic
space is demonstrated by contributions ranging from
judges and senior counsel, professors and senior policy
makers to budding scholars, lawyers and activists,
beginning their careers in various fields of human rights
law and practice.

Max Harris (Institutional Frameworks)

And on this note we would like to conclude by reiterating


our thanks to the contributors to the OxHRH Blog whose
posts form the very basis of this collection (many of
whom who continue to write for us). Their commentary,
analysis and insight ensures the OxHRH Blog continues
to offer a high quality, diverse and dynamic forum for
human rights researchers, practitioners and policymakers from around the world. Many thanks also, to
Professor Sandra Fredman, Founder and Director of the
OxHRH. Her daily involvement with the OxHRH Blog
and her endless support for the editorial team allows the
OxHRH Blog to be what it is. Without her, none of this
would be possible.

Julie Maher (Religion)

We hope you enjoy reading the posts and reflecting


upon the issues captured in this years edition of Global
Perspectives on Human Rights.

Kate Mitchell (Business & Finance)

Laura Hilly
Postdoctoral Research Fellow, Faculty of Law, University
of Oxford
Deputy Director, Oxford Human Rights Hub
Managing Editor, Oxford Human Rights Hub Blog

Jaakko Kuosmanen (Development & MDG Post 2015)

Laura Hilly
Richard Martin
Sub-Editors:
Kira Allmann
Heather McRobie
Chapter Commentators:
Laura Hilly (Access to Justice)
Helen McDermott (Jurisdiction & Scope)

Richard Martin (Criminal Justice)


Fiona de Londras (Security)
Alecia Johns (Democracy & Voting)
Gautam Bhatia (Expression, Association & Assembly)

Rachel Wechsler (Migration, Asylum & Trafficking)


Elena Butti (Children)
Meghan Campbell (Equality)
Karl Laird (Equality)
Sandra Fredman (Socio-Economic)
Barbara Havelkov (Labour)

Heather McRobie (Transitional Justice)

Richard Martin
DPhil Candidate in Law, Centre for Criminology,
University of Oxford
Editor, Oxford Human Rights Hub Blog

Chapter 1
10

Childrens
Access
to Justice
Rights

Access to Justice
Chapter 1

10

Introduction Laura Hilly

12

New Employment Tribunal Fees and Discrimination: UNISON v Lord Chancellor; Equality and
Human Rights Commission

13

The Impact of Fees in the Tribunal

13

A European Right to Legal Aid?

15

The Irrelevance of Residence: The Unlawful Residence Test for Legal Aid

16

Cutting Corners: The Procedural Illegality of Legal Aid Cuts

17

Presumptive Costs Orders: A Threat to Public Interest Interventions

19

Public Interest Lawyering in Times of Austerity

20

Clinical Legal Education as an Access to Justice Innovation

21

Valuing the Work of Community Lawyers to Resolve Systemic Problems The Productivity
Commission Report on Access to Justice Arrangements in Australia

Access to Justice
Chapter 1

Introduction
By Laura Hilly

Access to justice is the cornerstone of any fair and equitable legal system. As Sir Bob Hepple in his post The Equality Agenda in
2015 contained in Chapter 11 of this anthology (p 210) emphasises: This year marks the 800th anniversary of Magna Carta, so
it is not inappropriate to recall clause 40 (still on the statute book), which states: To no one will we sell, to no one will we refuse
or delay, right or justice. But writing on the second anniversary of the introduction of sweeping cuts to civil legal aid by the Legal
Aid, Sentencing and Punishment of Offenders Act 2012 (LAPOS), in the wake of debilitating fee hikes in UK employment tribunals
and an ongoing diminution of criminal legal aid, it is reasonable to ask what price are we all now paying for these reforms of
access to justice in England and Wales? While some of the proposed reforms highlighted in this chapter ultimately failed to make it
onto the statute books (for example, the proposed presumptive cost orders to burden amicus interveners: see Daniel McCredden
Presumptive Cost Orders: A Threat to Public Interest Interventions p 17) most of them succeeded in being enacted. And with the
re-election of the Conservative Party to Government in May 2015, many of these cuts are here to stay.
Michael Fords posts (New Employment Tribunal Fees and Discrimination: UNISON v Lord Chancellor; Equality and Human
Rights Commission p 12 and The Impact of Tribunal Fees p 13) chart the unsuccessful judicial review applications brought by
UNISON in response to the introduction of a new fee regime in the employment tribunal and employment appeals tribunal. Since
the introduction of the new fee regime there has been a dramatic drop in employment tribunal filings, particularly in small claims
and sex discrimination claims (down a staggering 91%). This is clearly not because equality in the workplace has magically been
realised in the 12 month period since the fees began, but rather because the fees pose an unsurmountable hurdle for many wouldbe claimants that might bring such claims.
There has been some limited success in challenging LAPOS in the courts. In Gudanaviciene & Ors v Director of Legal Aid
Casework & Anor [2014] EWHC 1840 (Admin), the applicants sought judicial review of the Lord Chancellors guidance issued on
how the Exceptional Case Funding scheme, established under LAPOS particularly for civil claims, was to be administered. The
guidance set an extraordinarily high threshold for eligibility, only for those rare cases where it cannot be said with certainty whether
the failure to fund would amount to a breach of the rights to legal aid afforded under Art 6 of the ECHR, or for EU Nationals, under
Art 47(3) of the EU Charter. As Alexander Thompson describes (European Legal Aid in a Domestic Framework p 13), the court
held that the guidance was ultra vires, and importantly recognised a limited right to legal aid is inherent in Art 8 (Right to Respect for
Private and Family Life) in addition to Art 6 and Art 47(3) EU Charter.
Another limb of LAPOS the introduction of a residence test to restrict access to legal aid for persons with less than 12 months
lawful residence was also the subject of successful judicial review. Daniel Cashman (The Irrelevance of Residence: The Unlawful
Residence Test for Legal Aid p 15) gives an account of a unanimous High Court ruling finding the secondary legislation introducing
the restriction to be both ultra vires and discriminatory. In respect to the first, the court rejected the Lord Chancellors argument that
these provisions were intended to restrict legal aid to those who have the greatest need, powerfully stating that no one can pretend
that removing legal aid from non-residents is a means or targeting legal aid to those most in need. Moreover, the test was held to
unlawfully discriminate in cases of equal need between residence and non-residents.
Changes to criminal legal aid have also been subject to judicial review. Daniel Cashmans post Cutting Corners: The Procedural
Illegality of Legal Aid Cuts (p 16) explains the High Court ruling in late 2014 that held that the consultation process adopted
by the Government in its decision to reduce the number of criminal legal aid contracts was so unfair that it was unlawful. The
Governments decision saw an immediate reduction of 8.75% in criminal legal aid fees and a reduction of the number of available
contracts work in police stations and associated work from 1,600 to just 525. These cuts provoked expressions of outrage by the
legal community, leading to unprecedented strikes and protest action within the legal profession in late 2014. While the claimants in
this case reiterated their profound disagreement with the Governments restructuring of criminal legal aid, the actual legal argument
was more confined. While the Court held that improper consultation processes were engaged in before enacting the changes,
Cashmans post highlights that the court indicated that even a relatively short re-consultation period would be sufficient, providing
little armoury for would be opponents of the substance of the cuts.
While this litigation has clearly served to highlight some of the flaws in the legal aid cuts package, it has not been enough to stand
in the way of a government (now with a fresh five year mandate) determined to dismantle a comprehensive publically funded
access to justice framework. Litigation has been useful in generating public awareness of the impact of the cuts, but as Thompson
perceptively notes: it must be asked whether it really is more expensive to conduct this kind of satellite human rights litigation, or
just to fund the litigant for the hearing in question.
As an alternative to direct legal challenge, Natasha Holcroft-Emmes, reflecting upon the Oxford Pro Bono Publico 2014 symposium
in Public Interest Lawyering in Times of Austerity (p 19) highlights the importance of members of the legal profession taking
ownership of this injustice. It is our social responsibility, as advocates of the values of fairness and equality, to take steps to address
this inequity. Grinne McKeevers post Clinical Legal Education as an Access to Justice Innovation (p 20) provides an inspiring
example of how this social responsibility can be realized through innovative clinical legal projects such as the Ulster Universitys

10

Access to Justice
Chapter 1

LLM in Clinical Legal Education. Programmes such as this are important not only for the immediate access to justice that they
provide for clients of the clinic, but also for the sense of social responsibility that they foster in students, encouraging more people
to see poor peoples law as a noble and necessary area of specialization that should be valued and encouraged.
While most of the posts in this chapter have focused upon the challenges that currently face England and Wales, Liz Currans post
Valuing the Work of Community Lawyers to Resolve Systematic Problems (p 21) reminds us that other jurisdictions are also facing
similar fiscal belt tightening in the age of austerity. In Australia, this environment threatens to undermine the important work of
community legal centres: but at what cost? In this post Curran highlights a recent Australia Productivity Commission Report that
underscores the value of community legal services in ensuring that access to justice is not just a lofty aspiration for those who need
it most (often the people that can least afford legal assistance), but a reality. The post also points to both the overall economic and
social gains achieved through the proper funding of public legal services. This kind of long-term, big picture and evidence-based
thinking by the Australian Productivity Commission is to be welcomed; it demonstrates that the costs in restricting access to justice
by curtailing publically funded legal aid may, in the long run, be too much to bear for all.
As legal challenges to many of these reforms have begun to make their way to the courts in the last year, the posts that describe
and explain them in this chapter paint a grim picture. While there have been some small moments of success, litigation has done
little to dismantle this new and impoverished access to justice framework which, as many highlight, dramatically inhibits access to
the courts, and does little to safeguard justice.
Dr Laura Hilly is a Posdoctoral Research Fellow and Deputy Director of the Oxford Human Rights Hub at the Oxford Faculty of Law.

11

Access to Justice
Chapter 1

New Employment Tribunal Fees and Discrimination: UNISON v Lord Chancellor; Equality
and Human Rights Commission
By Michael Ford | 7th February 2014

In R (Unison) v The Lord Chancellor & Anor [2014] EWHC 218 (Admin), the High Court (Moses LJ, Irwin J) an important judicial
review proceeding was brought by UNISON to challenge the fees regime introduced in the employment tribunal and EAT. The
Court rejected the application but its judgment is interesting for what it says about the effect of fees and for the possibility of a future
challenge.

In summary:
1. The judgment refers to errors in the guidance on the fees and the indication from the Lord Chancellor, given in the course
of the hearing, that there will now be a presumption that a successful claimant recovers fees (para 15). The rules may be
amended in due course.
2. The Court rejected the claim that the Fees Order breached the EU principle of effectiveness but principally on the basis that
there was as yet no sufficient evidence on this. It noted that the dramatic fall in claims may turn out to be powerful evidence
to show that the principle of effectiveness, in the fundamentally important realm of discrimination, is being breached by the
present regime (para. 46). The Court referred to the difficulties of proof in discrimination, now exacerbated by the future
abolition of the questionnaire procedure, saying that it would expect tribunals to encourage a full exchange of information
before the payment of a hearing fee is due. It also noted the low median awards for discrimination and a recent BIS Study in
2013, which concluded there is an even chance individuals who are successful receive payment of their award. Thus (para 29):
The evidence amply supports the conclusion that the ability to bring discrimination cases is a vital plank in the means of
combating discrimination, but the outcome of bringing claims is difficult to predict and the rewards are small, with an even
chance of failing successfully to enforce them.
Despite that, and evidence of the dramatic fall in tribunal claims (about 80% drop on the latest figures), the Court concluded
that the hypothetical examples of claimants proposed by UNISON were not yet sufficient to show the principle had been
breached.
3. The Court did not consider there was a breach of the principle of equivalence, in particular, because now that the Lord
Chancellor had agreed that a successful claimant should recover his or her fees, it could not be said that the regime was

12

Access to Justice
Chapter 1

less favourable than comparable County Court claims. Nor was it persuaded that the evidence showed that the public sector
equality duty was breached, though it said there may be substance in the argument that the proposals failed properly to take
account of the impact on women of bringing discrimination claims (para. 66).
4. The final ground was whether the regime was indirectly discriminatory. Faced with limited evidence on the effect to date and
the dispute about it, the Court ultimately decided it could not determine whether there was disparate impact. But after referring
to data showing the relatively low income of women and people from ethnic minorities, it said it had a strong suspicion that
there will be some disparate impact on those who fall within a protected class (para. 84).
5. On that basis the Court considered objective justification. Both UNISON and the EHRC argued that the imposition of fees on
claimants alone could not meet this test, particularly in the context of the low level of awards and the woefully inadequate
enforcement system (para 87). But in the absence of more compelling evidence as to the disparate impact, the Court
considered it could not yet determine whether the regime was discriminatory. It made clear, however, that this matter the
Lord Chancellor owed a duty to keep the matter under review and to take remedial measures if it is revealed to have a
discriminatory effect (para 89).
Michael Ford QC acted for the Equalities and Human Rights Commission, instructed by Rosemary Lloyd.

The Impact of Fees in the Tribunal


By Michael Ford | 22nd September 2014

Fees for bringing claims in the employment tribunal were introduced in August 2013. Since then, the Ministry of Justices statistics
have revealed a huge decline in the number of claims. The latest statistics continue the depressing trend of early figures, and
undermine any argument that the earlier statistics were unreliable.
A comparison of claims accepted for April-June 2014 with those for the same quarter for 2013, prior to the introduction of fees,
shows the following:


An 81% drop in the total of claims accepted, comprised of a 70% drop in single claims and a 85% drop in multiple claims.
An alarming 91% drop in claims of sex discrimination, confirming the figures from previous quarters, and 75% fewer equal pay
claims.
An unsurprising huge decline in small claims: for example, claims for deduction from wages are down 74% and working time
claims are down 90%.

This decline, if anything, greatly under-estimates the deterrent effect of fees. They only show how they impact on the issue of a
claim form. Any worker who wants the privilege of a hearing for a discrimination claim, for example, must pay a further fee of 950.
No fees are payable by the employer unless it loses the case, and it is then for the worker to enforce non-payment in the County
Court paying another fee.
Matthew Hancock, Minister of State for Education and Business, celebrated the drop in claims. He asserted that it demonstrated
the scale of false allegations that had been made against blameless employers. Unscrupulous workers caused havoc by
inundating companies with unfounded claims of mistreatment, discrimination or worse [sic]. Like Japanese knotweed, the soaring
number of tribunal cases dragged more and more companies into its grip, the Daily Telegraph reported him as saying.
No-one in government seems to have paid any heed to 2013 research for the Department of Business, Innovation and Skills that,
of those claimants who succeed in the tribunal, only 49% were ever paid in full. The government responded to similar reliable
empirical evidence about this problem in the consultation which preceded the introduction of fees by stating that we expect all
parties to abide by the decisions of the tribunal and pay awards and fees as ordered. No doubt, too, it expects employers not to
discriminate against their workers because the current fees system means that the risk of a legal claim is minimal.
Michael Ford QC is a barrister practising from Old Square Chambers in London. His principal area of practice is labour law, both
individual and collective, including areas such as equal pay, industrial action, working time and trade union law.

13

Access to Justice
Chapter 1

A European Right to Legal Aid?


By Alexander Thompson | 25th June 2014

A key aspect of the Governments reform agenda regarding civil legal aid is the restriction, set out in Schedule 1 to the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 (LASPO), of legal aid to certain categories of claim.
In particular, nearly all areas of immigration law work were removed from the eligibility for legal aid. However, since areas such as
deportation and extradition clearly involve the potential application of human rights claims, the Act had to provide some means of
catering for the limited right to legal aid itself implicit in the European Convention on Human Rights, which would apply wherever
the Convention rights came into play. To take an example, where the Home Office makes a decision to deport a foreign national
who has committed an offence within the United Kingdom, there will be a hearing before an immigration judge to determine if that
decision can be successfully set aside by the individual concerned.

Three questions arise to that extent. The first is whether there is any right to legal aid in respect of that hearing. This would depend
on whether Article 6 of the Convention itself applied. However, Article 6 is qualified by its terms which state it only applies in respect
of the determination of civil rights and obligations or for criminal proceedings. Awkwardly, many areas of public law fit neither into
the private law or criminal law paradigms (although the latter is itself a kind of public law). Whether it can be really said that the
framers of the Convention intended whole swathes of domestic law to fall outside the scope of Article 6 is moot, at the very least,
but the European Court followed that legalist reasoning to its logical end, and held, in Maaouia v France [2000] ECHR 455, that
inter alia immigration law did not involve the determination of civil rights and obligations. Any procedural right to legal aid under
Article 6 was therefore itself moot, since the Article could never substantively apply to the hearing at all.
This, it was soon noted, could be conveniently sidestepped by a clever expedient. Provided the claim fell within the bounds of
European Union law a more extensive protection might lie. Under the EU Charter of Fundamental Rights a legal aid article exists
in the form of Article 47(3). Importantly, that article does not include the restrictive terms that Article 6 does, so that all character
of law falls within its protection. Also fundamental is that the European Court of Justice had stated in its decision in DEB Case C
279/09 that this would be interpreted in line with Article 6 so that no inconsistency lay between their applications. So, the European
citizen awaiting deportation could rely on EU law instead. The American, the Australian, or the Nigerian, could not.
The final question which arose was whether other Articles included a procedural aspect which required legal aid to be granted.
Most notably, Article 8 would be engaged substantively to determine in many of these cases whether deportation, extradition or
other state decisions were lawful as proportionate interferences with the individuals family and/or private lives. Although Article 8
does not explicitly include a procedural aspect, it had been previously raised in other cases whether a right to legal aid might derive
from Article 8. This would, for many cases, render the above discussion rather moot, and would be a boon for the non-EU foreign
national.
LASPO is constitutionally a fascinating Act in the history of UK human rights jurisprudence. For the first time, in this authors
understanding, it purports to prospectively cater for the Courts consideration of the primary legislations, and the Legal Aid Agency
decisions, compatibility with the Convention under sections 3 and 6 of the HRA respectively. For this purpose, it provides a scheme

14

Access to Justice
Chapter 1

in section 10 called Exceptional Case Funding whereby applicants may apply to be eligible for legal aid where failure to provide it
would breach their ECHR or EU law rights, as considered above. That very scheme is now open to challenge under administrative
and human rights law angles. In the next post we will see whether the Government policy guidance issued under the Act was held
lawful in public law, and whether the recent refusals to provide aid were a breach of the HRA.
Under section 4 of LASPO, the Lord Chancellor provided guidance on how to decide exceptional case funding (ECF) applications
made to the Legal Aid Agency.
The lawfulness of that guidance was open to judicial review on the basis that it was ultra vires, having misinterpreted the right
answer to the three questions considered above.
In an important decision just handed down earlier this month, Collins J in Gudanaviciene [2014] EWHC 1840 (Admin) held that the
Lord Chancellors guidance was unlawful in the following respects:
1. It set the threshold for determining applications under Article 6 ECHR or Article 47(3) EU Charter, where they applied, too high.
The guidance had stated that funding was appropriate in those rare cases where it cannot be said with certainty whether the
failure to fund would amount to a breach. This was perverse, since hardly any applications would ever show with certainty that
the Convention required legal aid. This was borne out by the fact that only 1% of ECFs had succeeded since April 2013, when
the scheme came into force. By contrast, Collins J preferred the ECtHRs jurisprudence from Steel v UK (2005) 41 EHRR 22,
viz. that that there must be effective access to a court, including the consideration of fairness, to be proved on a balance of
probabilities.
The guidance did not consider Article 8 to have any procedural aspect at all, so that the Agency was not to take it into account.
Looking at the European jurisprudence, Collins J held that this was wrong in law. In fact, Article 8 did include a procedural
aspect, and that did involve a limited right to legal aid where it was engaged: see AK & L v Croatia (Application No: 37965/11).
The relevant test was the same as that for Article 6.
2. That concluded the judicial review aspect to the claim. However, Collins J went further and quashed the decisions of the
Director refusing aid in respect of all six claimants, on the grounds that they breached their Convention rights. Strictly, this
may have been under section 6 of the HRA, or under administrative law on the basis that the decisions were founded on an
irrelevant consideration, the unlawful guidance. It is plain from the first claimant, Gudanaviciene, that Collins J considered
Article 8 to suffice to depose of the refusal, without any need to rely on administrative law or EU law rights instead.
There are, therefore, limited rights to legal aid inherent in Article 8 (and some of the other articles: see the discussion of Articles
3 and 5 in the case), so that exceptional case funding should be available for immigration cases notwithstanding the limitations
of Article 6 ECHR. Where an individual cannot rely on any of the Articles, but is an EU citizen, Article 47(3) of the EU Charter
will provide equivalent protection.
The history of this area is a fascinating insight into the cross-application of administrative and human rights law, since Page
mandates the High Court to decide in effect every case: wherever the Legal Aid Agency interprets the risk of breach incorrectly, this
will result in a misinterpretation of section 10 of the Act, which is a reviewable error of law. It might be queried whether Parliament
in fact intended the Lord Chancellor to be able to provide more restrictive protection, even if it breached the UKs international
obligations.
Such an interpretation seems to be headed off by section 3 of the HRA, however. In any case, section 6 would always require the
Court to assess breach by the Legal Aid Agency. At present, and fascinatingly, if the HRA were ever repealed, Page appears to
provide an equivalent result, since it mandates a correct interpretation of European human rights under the domestic statute. In
cost terms, it must be asked whether it really is more expensive to conduct this kind of satellite human rights litigation, or just to
fund the litigant for the hearing in question.
Alexander Thompson has a BCL with Distinction from Oxford, where as part of OLA he worked with legal aid firm Turpin & Miller on
Gudanviciene.

The Irrelevance of Residence: The Unlawful Residence Test for Legal Aid
By Daniel Cashman | 16th July 2014

In R (Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin), the Administrative Court held that the
Governments proposed residence test for legal aid was ultra vires and discriminatory. The judgment serves as a welcome criticism
of the sweeping justifications adopted by the Government in the name of austerity.

15

Access to Justice
Chapter 1

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) brought swingeing cuts to civil legal aid from April
2013. Soon after it came into force, the Government proposed a raft of further reforms in Transforming Legal Aid. Among the
proposals for reform was a residence test, which would restrict access to legal aid for persons with less than 12 months lawful
residence. The Government proposed to implement this test by secondary legislation in the LASPO (Amendment of Schedule 1)
Order 2014. The Public Law Project brought judicial review proceedings to challenge the legality of the Governments decision to
propose the residence test.
First, it was argued that the proposed legislation was ultra vires. Under LASPO s.9(1)(a), legal aid is to be provided in the cases
identified in Part 1 of Schedule 1, which have been identified as the situations in greatest need of public funding. Importantly, they
are not cases in respect of which the United Kingdom is obliged to provide legal assistance, either under the Human Rights Act or
the common law. Rather, legal aid in such exceptional cases is (supposedly) catered for by s.10.
The Lord Chancellor sought to argue that LASPO conferred power to introduce the residence test in secondary legislation by virtue
of ss 9(2) and 41(2)(b) LASPO, as these provisions grant a power to restrict legal aid by reference to a class of individuals identified
by residence. However, this argument was given short shrift by Moses LJ, with whom Collins and Jay JJ agreed. Section 9 LASPO
serves to identify those individuals who have the greatest need for legal aid (at [37]); so, the powers under ss 9 and 41 must serve
and promote that object of the statute. A residence test falls short: in a powerful statement, his Lordship held that no one can
pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need (at [42]). As a result,
the Court concluded that the proposed secondary legislation was ultra vires, as it sought to extend the scope and purpose of the
statute.
Second, it was argued that the proposed amendment was discriminatory. The Government sought to argue that the discrimination
was lawful because legal aid, in those cases where the law does not impose a duty to provide it, is no more than a form of welfare
benefit. It is well-established that discriminatory selection in relation to the distribution of benefits is a matter for the judgment of
Parliament and the Government. Given that the residence test did not apply to s. 10 LASPO cases, the Government considered
that it was permissible to select which individuals could benefit from legal aid.
However, the Court also convincingly rejected this argument. Moses LJ held that legal aid differs from welfare benefits on the facts
as the Government has already reached the conclusion that certain categories of case demonstrate such a high priority of need as
to merit litigation supported by taxpayers subsidy (at [71]). The correct question for the court was not about the denial of legal aid,
but about discrimination in cases of equal need between those who are eligible and those who are not. As a result, the proposed
residence test discriminated unlawfully.
The outcome of this case is no surprise the residence test had already been widely criticised as unlawful. Nevertheless, the
judgment serves as a stark reminder to the Government that its austerity measures must only be adopted within the bounds of the
law. Austerity risks becoming a blanket justification for the Governments removal of benefits and legal aid; yet, the High Court has
shown that the mere identification of limited public resources cannot legitimate an unlawful discriminatory approach.
However, the residence test may survive. The judicial review was merely of the Governments decision to introduce the proposed
secondary legislation, and the Court has not yet decided on the relief to be awarded; the Government has also indicated its
intention to appeal. The House of Lords will consider the proposed residence test on 21 July 2014 it is only to be hoped that the
full force of the Administrative Courts reasoning will see the amendment rejected.
Daniel Cashman is a barrister, who completed the BA and BCL at the University of Oxford. He was a founding co-chair of Oxford
Legal Assistance and on the Executive Committee of Oxford Pro Bono Publico.

Cutting Corners: The Procedural Illegality of Legal Aid Cuts


By Daniel Cashman |24th September 2014

In R (London Criminal Courts Solicitors Association & another) v Lord Chancellor [2014] EWHC 3020 (Admin), the High Court ruled
that the consultation process adopted by the Government in reducing the number of criminal legal aid contracts was so unfair that it
was unlawful.
In February 2014, the Lord Chancellor announced that a radical overhaul of legal aid would see an immediate reduction of 8.75
per cent in criminal legal aid fees and a reduction of the number of available contracts for advisory work in police stations and
associated work (Duty Provider Work contracts) from 1600 to 525. The reforms led to protests and strike action within the legal
profession, with concerns being expressed about the damage such cuts would cause to the criminal justice system.
While the claimants in the present action reiterated their profound disagreement with the merits of the Governments decision, the
judicial review focused on the narrower question of whether the process adopted in reaching the relevant decisions was lawful. The

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challenge centred on the fact that the Lord Chancellor should have disclosed, and consulted on, financial reports by Otterburn and
KPMG; the latter report was alleged to have been based upon controversial assumptions which had not previously been publicised
by the Lord Chancellor.
The Government was under no statutory duty to consult in connection with the legal aid changes; however, there was a longstanding practice of doing so (at [34]). As held by Lord Woolf in Coughlan [2001] QB 213 at [108], if [consultation] is embarked
upon it must be carried out properly. And, the impact of a particular decision is relevant in determining what is proper consultation
in any context. In the present case, both sides agreed that the context of the Lord Chancellors decisions, namely their potential
impact on the livelihoods of solicitors and access to justice, placed this case towards the upper end of the scale so far as the
demands of fairness were concerned. (Interestingly, Burnett Js judgment indicates that his Lordship was particularly influenced by
the impact on solicitors livelihoods, seemingly in preference to arguments focusing on the impact on those accused of crimes, see
e.g. [37] and [50].) In the light of this high standard of consultation that was required, the failure to disclose the reports was so unfair
as to result in illegality (at [50]).
The implications of the decision may be relatively limited. The decision does not hold the cuts to legal aid themselves as illegal;
while the claimants sought to argue that the 8.75 per cent fee cut should also be quashed, Burnett J held that this decision was
not sufficiently connected with the flaws identified in the consultation process (at [55]). Further, while the Government is now
required to consult on the number of Duty Provider Work contracts to be awarded, it was recognised that a relatively short reconsultation period would be sufficient (at [54]). What is perhaps most significant is the existence of yet another judicial criticism of
the Governments desire to rush through cuts to the legal aid system without due concern for the impact that such cuts will have on
individuals lives.
Daniel Cashman is a barrister, who completed the BA and BCL at the University of Oxford. He was a founding co-chair of Oxford
Legal Assistance and on the Executive Committee of Oxford Pro Bono Publico.

Presumptive Costs Orders: A Threat to Public Interest Interventions


By Daniel McCredden | 23rd July 2014

The Criminal Justice and Courts Bill received its second reading in the House of Lords on 30 June 2014 and has now been referred
to committee stage. Part 4 of the Bill contains a package of reforms to the judicial review process, including a proposed new costs
rule for interventions in the High Court and the Court of Appeal. The new rule is a serious concern for human rights litigation in the
United Kingdom.

Clause 67 of the Bill will, in two respects, remove the courts general discretion in relation to costs in a judicial review proceeding.
First, the court will not be permitted to order payment of an interveners costs, unless there are exceptional circumstances (cl
67(2) and (3)). Second, the court must, on application by a party to the proceeding, order an intervener to pay that partys costs
incurred as a result of the interveners involvement in the proceeding (cl 67(4)). The court may only refrain from making such an
order if there are exceptional circumstances (cl 67(5)). This is a significant shift from the current position, where in recognition of

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the distinct, court-assisting role they play, public interest interveners ordinarily bear their own costs and are not liable to pay other
parties costs, regardless of the outcome. It is also an unusual, restrictive incursion into the courts general powers to determine
costs liability. In that context, one might legitimately expect the Government to provide a strong rationale for change. Worryingly,
that has not been the case.
In its consultation material, the Government has described its proposals as being necessary to ensure that those involved [in
judicial review proceedings] have a proportionate financial interest in the costs of the case. It has endorsed the general principle
that where a party chooses to intervene in judicial review proceedings , ordinarily that should not result in additional expense
for the existing parties to the litigation. It has spoken before the Joint Committee on Human Rights (JCHR) of judicial review being
used for campaigning purposes and as a delaying tactic; and before the Public Bill Committee of interventions becoming a riskfree enterprise for many organisations and for which the taxpayer is shouldering the burden.
The problem is, however, that the proposed rule is itself wholly disproportionate; it misconceives and greatly undervalues the role
of interventions in the judicial review process and the courts responsibility for regulating their scope; and it will in practice shut out
public interest interventions in Human Rights Act litigation.
As currently drafted, even where submissions made by an intervener are accepted and endorsed by the court, there is to be a
presumption that the intervener will pay the state defendants costs. As reported by the JCHR, the presumption will also apply in
circumstances where the Government unsuccessfully contests an interveners application for permission. It is difficult to see how
an intervener could argue exceptional circumstances simply on the basis that the court accepted the arguments it advanced it is
surely not exceptional that an intervener might succeed in persuading a court to a view of the law different to that held by a state
defendant. So, it is hard to see how this rule results in an intervener having a more proportionate financial stake in the outcome of
a case.
However, the most troubling aspect of the proposed rule is what it reveals about the Governments view of adjudication in public law
litigation. Interventions typically are only sought, and certainly only permitted, where the intervention will assist the court in reaching
a proper determination. As Arshi and OCinneide explain, (Third-Party Interventions: The Public Interest Re-affirmed (2004) Public
Law 69) the core rationale for judicial intervention is the introduction of relevant perspectives and expertise into the judicial
process in order to serve the public interest in good adjudication. In other words, the public interest in the court hearing from those
in a position to provide relevant data, experience and legal argument concerning the issues before it. All the more so in human
rights cases, where the wider contextual impact of a decision more readily engages the need for third party assistance, especially
from organisations representing marginalised voices or that have particular knowledge and experience of human rights discourse at
both the domestic and international level.
To encourage better adjudication and judicial decision-making including through the use of interveners where appropriate is, of
course, simply to recognise the public aspect of the judicial function. The Government frequently refers in its consultation material
to the private aspect of judicial review adjudication resolving one-off disputes between individual and state. There is, however,
very little, if any, recognition that adjudication performs a vital public function: it determines, develops and clarifies the law for the
benefit of the community as a whole and the maintenance of the rule of law. As the Constitutional Court of South Africa said in
Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 (in relation to costs orders in constitutional
litigation) (at [23]):
[C]onstitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved,
but on the rights of all those in similar situations. Indeed, each constitutional case that is heard enriches the general body of
constitutional jurisprudence and adds texture to what it means to be living in a constitutional democracy.
The same considerations apply to human rights judicial review litigation. Yet, the Governments new costs rule has proceeded to
date without change through Parliament despite the deep concern expressed by essentially every consultee that the risk of adverse
costs orders will almost certainly prevent them from intervening. For example:


It will stop organisations such as ours that devote limited resources to [intervening] in cases where the courts might be too
narrowly focused on the interests of the parties before them. (JUSTICE)
[We] can say with absolute certainty that [our] trustees would not give permission for applications for interventions to be made
[with such a costs risk] (Public Law Project)
[It will]deter third party interventions from organizations that are unable to take any additional costs risks, whereas
interventions will continue to be made by those representing well-resourced interests including companies and the government
itself. (Amnesty International UK)

Similar representations have been made by Liberty, Reprieve, Shelter, Bail for Immigration Detainees, Rights Watch UK, the
Bingham Centre for the Rule of Law, the Law Society and the Bar Council. Their submissions demonstrate that interventions by
charities and NGOs are certainly not risk-free enterprises they involve the application of scarce resources, with legal work often
performed pro bono by necessity, and they demand serious consideration before a decision is taken to seek permission. As the

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JCHR has concluded, the proposed cost rule for these reasons poses a significant deterrent to interventions in judicial review
cases.
The Governments proposal is also troubling for its apparent lack of respect for the judiciary. The current position is that the courts,
in considering permission, have regard to matters such as the additional expense and the effect of the intervention on the parties.
Interventions are closely regulated by the courts, in terms of the length, type and focus of submissions permitted. The courts may
also order the payment of costs by an intervener if, for example, it has acted unreasonably or has become, in effect, a principal
party in the proceeding this is indeed the current rule in the Supreme Court.
The Government has provided no evidence that the courts are making irresponsible decisions in relation to interventions, and
yet the proposed rule will quite conspicuously end the very types of interventions that the courts routinely welcome. Moreover,
no reason has been given as to why the same position as exists in the Supreme Court ought not continue to apply in the lower
courts. An obvious undesirable consequence of the distinction between courts is that valuable interventions will be prevented from
contributing at an earlier stage of litigation, where they might enhance first-instance (or appeal level) decision-making, or help
facilitate a settlement (thereby reducing costs).
The upcoming committee debate in the House of Lords offers the opportunity for a rethink on these proposals. It is hoped that the
serious concerns expressed by consultees and the JCHR will be given real and genuine consideration.
Daniel McCredden is an Australian barrister. In 2014 he undertook an LLM at University College London.

Public Interest Lawyering in Times of Austerity


By Natasha Holcroft-Emmess | 28th May 2014

On 24 May 2014, to mark its 14th anniversary, Oxford Pro Bono Publico presented a symposium on the importance of, and
challenges to, the practice of contemporary public interest litigation. The symposium benefitted from a vibrant dialogue between
prominent practitioners and academics. One of the panel discussions centred upon the impact of austerity on public interest
lawyering in the UK.

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Jo Renshaw, of Turpin & Miller LLP, illustrated the grave effect which austerity measures have had on the day-to-day practice of a
public interest law firm. The cuts to civil legal aid brought in under the Legal Aid, Sentencing and Punishment of Offenders Act 2012
(LASPO) affected a substantial proportion of the firms practice areas.
The pro bono contributions of students are a useful aid for practising solicitors, by providing clerical support in clinics through
Oxford Legal Assistance. But the impact of the funding cuts has undoubtedly hit the most vulnerable. Clients from some of the more
marginalised groups, such as immigrants and the destitute, have ceased to come for assistance. They know that there are simply
no longer funds available to support them. These people have disappeared from the legal landscape.
Helen Mountfield QC, of Matrix Chambers, posited the difficulties of taking a public interest matter through to litigation where
the individual(s) whose rights are in jeopardy lack the means necessary to satisfy an adverse costs order, should their claim be
unsuccessful.
Although discretionary funding for exceptional cases is in theory available, in practice the provision is nowhere near sufficient, and
those who miss out tend to be the ones most in need of additional support.
These practical considerations pose a real barrier to access to justice for those who cannot fund litigation through to completion.
The criterion for justice then becomes whether the aggrieved party has sufficient resources, rather than the public interest in
resolving cases fairly. This is obviously an unsatisfactory state of affairs. Helen emphasised the importance of members of the legal
profession taking ownership of this injustice. It is our social responsibility, as advocates of the values of fairness and equality, to
take steps to address this inequity.
Polly Glynn, of Deighton Pierce Glynn Solicitors, explicated her experience with some shocking cases of individuals gravely in
need of the assistance of a social fund to protect their legal rights. Examples posited included clients who required reasonable
accommodation, people living in abject poverty and those in need of immigration advice and assistance. Polly advocated some
creative antidotes to the deleterious effect of the legal aid austerity measures. Greater dissemination, and improved ease of use, of
information available to assist vulnerable clients would be one advance. Greater judicial awareness of, and empathy for, the plight
of such individuals was another. The benefits which can be brought to litigation through third party interveners was also touched
upon, and highlighted later in conversation between OPBP faculty director Professor Sandra Fredman QC and Justice Abella of the
Supreme Court of Canada.
Although the context of the UK austerity measures inevitably paints a grim picture for prospective litigants in public interest matters,
the existence and quality of dialogue between practitioners, faculty and those who contribute to the work of OPBP engenders some
hope. The symposium in particular affirmed the clear commitment within the profession to ensure that the public interest in fair and
open justice is not extinguished for the sake of austerity.
Natasha Holcroft-Emmess is a London-based solicitor. She completed the BCL with distinction and is a frequent contributor to the
Oxford Human Rights Hub Blog.

Clinical Legal Education as an Access to Justice Innovation


By Grinne McKeever | 12th September 2014

Imagine you got grant funding to develop an access to justice research agenda. Your grant application proposes the appointment of
a team of law graduates to conduct research within a particular advice organisation: to talk to all the clients who come for advice; to
understand why, when and how clients seek legal help; to see the difficulties for clients in engaging with dispute resolution systems;
to understand where the disconnect is between what clients need and what the system provides.
Imagine that, by the end of a 12-month research contract, the researchers themselves were trained advisers, who did not just
observe other advisers but were also helping to meet unmet legal need, by providing advice and advocacy for the clients of this
organisation. Imagine that while your researchers provided the knowledge base and data sets that allowed you to deepen your
research on access to justice and legal need, they were simultaneously developing individually and collectively their own
informed socio-legal analysis of these and related issues. Imagine that the quality of research and advocacy provided by your
researchers was sufficient to gain them a LLM in Clinical Legal Education.
In September 2012, Ulster Universitys LLM Clinical Legal Education began with such an imagined process, but instead of grantfunded access to an external advice organisation, Law School staff developed an in-house legal laboratory in the shape of the
Ulster Law Clinic, around which the LLM in Clinical Legal Education is constructed. Based on Nuffield-funded research conducted
by this author for Law Centre (NI) (which identifies unmet legal need for users of social security and employment tribunals in
Northern Ireland), the LLM in Clinical Legal Education was established to develop an understanding of the nature of this defined
legal need. It achieved this by training graduate law students to provide advice and advocacy for members of the public with
social security and employment law problems, while also creating a space for staff and students to reflect on and analyse the

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manifestations and implications of the legal problems faced by Clinic clients.

The Ulster Law Clinics thematic focus is on access to justice and the contribution that Clinic staff and students can make
practically and intellectually to this enterprise. In recognition of this, the Northern Ireland Department of Justice provides an
annual full-fees Access to Justice Scholarship, and scholarship recipients in turn provide the Department with an access to justice
report based on the Clinics work. As a pro bono enterprise, the model has been extremely effective. In 2013-14, ten student
clinicians provided over 500 hours of legal support to members of the public, under the supervision of Ulster Law Clinic Directors,
covering complex legal problems including discrimination, redundancy and social security overpayments.
The programme was awarded the 2014 LawWorks and Attorney Generals award for best new pro bono activity in the UK and the
current (government commissioned) review of Access to Justice in Northern Ireland points to the Ulster Law Clinic as an example of
how alternative models of access to justice can be delivered. The programme has now captured international imagination and has
been nominated for an Innovating Justice award by the Hague Institute for the Internationalisation of Law (HiiL) which recognises
novel ideas with a strong potential of delivering concrete justice results. The Ulster Law Clinic joins 17 other nominations from
around the world, from India, to Malawi, to the US, but it is the only nomination from a Law School in the UK or Ireland, and only
one of three nominations that come under a clinical legal education umbrella.
Nonetheless, the Ulster Law Clinic is built on the strong foundation of clinical legal education in these jurisdictions, and clearly
demonstrates the value of clinical legal education in terms of access to justice, educational experience, community engagement
and research development. In short, the HiiL nomination exemplifies the potential for clinical legal education to deliver concrete and
innovative justice solutions that can inform and be informed by an access to justice focused research agenda.
Dr Grinne McKeever is a Reader at the School of Law, University of Ulster.

Valuing the Work of Community Lawyers to Resolve Systemic Problems The Productivity
Commission Report on Access to Justice Arrangements in Australia
By Liz Curran | 16th January 2015

In the past decade or more in Australia, creeping managerialism and efforts to reduce funding of services under the guise of
fiscal belt tightening and efficiency have threatened and sometimes jeopardised the effectiveness of the legal system in being
able to respond to community need. The Australian Productivity Commissions Final Report on Access to Justice Frameworks
was released on 3 December 2014. It acknowledges the value of community legal centres and legal aid as highly committed and
supports the systemic advocacy of these providers in ensuring and improving a fairer justice system in Australia.
Community lawyers (whose work is mainly with the most vulnerable and disadvantaged clients) are uniquely placed to see the
revolving door of problems in the community. Exposure to client experience and case work gives them a vantage point from which
to identify how things might be adjusted to enhance human rights and improve confidence in the law. Such a perspective can see
lawyers finding solutions to also circumvent unnecessary cost to the judicial and administration systems that come by repeat cases
with the same issues coming before the courts. They can see where early intervention or prevention of the problems arising in the
first place might come from improved community legal education or law reform and identify barriers to access to justice.

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Lawyers, as officers of the court in Australia, also have obligations to uphold the rule of law, to ensure confidence in the legal
system and its administration. Laws that are poorly drafted, negatively impact on or alienate certain sections of the community
because of their disadvantage reduce community confidence in the legal system. It is therefore incumbent on lawyers as part of this
primary duty, to work to protect the integrity of the legal system in such circumstances.
Lawyers in community legal can also explain the context, complexities and barriers their clients encounter. Part of the core
definition of this service includes legal education in and with the community, advocacy and law reform. This multi-pronged service
model averts the fragmented nature of legal work that often exists in the private profession. Many community legal centres in
Australia are also increasingly co-locating or creating one stop shops or outreach centre, integrating their services alongside
non-legal service providers where the most vulnerable or hard to reach clients are likely to be. In addition, community lawyers can
provide a consistent voice for those in the community who by reason of a lack of power, media control and social exclusion can be
invisible. This befits a participatory democracy.
In the past decade, I have argued for the use of strategic casework with multiple strategies involving education, policy work, media
awareness raising, law reform and participation in expert and other advisories, as critical work for community lawyers. This is
an efficient and effective way of ensuring a good use of finite resources and a more efficient justice system. In a climate of ever
reducing funding, greater targeting to those who need help the most and with increasing demand, I have argued that resources
might be strategically utilised so as to work on public interest or other cases where the greatest need and impact can be derived for
the greatest number. This strategic work does not however preclude or replace the importance of case work in individual settings
such as care and protection of children, court and tribunal representation and advocacy in family law, criminal law and family
violence, but ought to be a compliment to it.
The Productivity Commissions report makes many recommendations. This includes stable and sustainable funding, more closely
connected to the realities of service delivery than is currently the case. It observes that Commonwealth funding for community
legal centres has been largely ad hoc and historical. The Commission notes that record keeping and data collection imposed by
government is unduly burdensome on services and not that useful and that there has been a disconnect between legal need and
government funding and calls for funding to reflect the cost of service provision and indicators of need. To this end, the Commission
stresses as a priority the need for evidence based research that is outcome based and consistently undertaken with a clearinghouse to facilitate information. The Commission clearly endorses and acknowledges the important place of legal aid and community
legal centres in systemic work and that the work is difficult and challenging but finds a home in the commitment and conviction of
the legal assistance sector. It affirms the need for integrated, and holistic service delivery, the need for effective community legal
education and the importance of the legal assistance sector working closely with the non-legal services to better reach and assist
people in accessing legal help. It stresses that the sector is under-resourced, suggesting an injection of $200 million. Critically, the
Productivity Commission underlines the importance of systemic law reform and policy work that can be critical in ensuring a just,
accessible and smoother legal system.
It is hoped that an Australian Government, on the record as being sceptical and unwilling to fund systemic advocacy, will pay
heed to this important report which points strongly to the need for government to value and support the critical work that the legal
assistance sector given that legal problems, if unresolved, can have a big impact on lives.
Dr Liz Curran is a Senior Lecturer at the ANU College of Law.

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23

Chapter 2

Jurisdiction & Scope

Jurisdiction & Scope


Chapter 2

26

Introduction Helen McDermott

28

Where will the US go after Kiobel?

28

Lessons from Daimler

29

Human Rights in Disputed Territories Affixing Responsibility

30

Investigating Crimes Against Humanity South Africas Embrace of Universal Jurisdiction

32

Brighton and Beyond Where Next for the European Convention on Human Rights?

33

Why the UK Should Embrace the EU Charter of Fundamental Rights

34

Cyprus v Turkey: Arming the European Court against States Complacency?

35

Jones and Others v UK: Immunity or Impunity?

36

Right to Justice Deprived by State: Case of Manorama Vs AFSPA from Manipur, India

37

The Geography of International Law and the Cyber Domain

39

Nonsense on Stilts? Tommy the Chimps Legal Battle for Non-Human Person Rights in the New
York Courts

Jurisdiction & Scope


Chapter 2

Introduction

By Helen McDermott
Globalization has led to an increase in the ability of states and other powerful actors to affect, both positively and negatively, human
rights beyond their territories. The declining significance of territorial borders and the emergence of powerful non-state actors have
given rise to types of human rights violations, and categories of human rights violators, that were not originally envisaged. The
posts in this chapter explore new and complex issues that impact on human rights, and consider how domestic and international
legal systems have and/or should respond to them.
Regulating the conduct of non-state actors is one of the biggest and most critical challenges facing international law today.
Traditional approaches to human rights, which view non-state actors as beyond the direct reach of international human rights law,
can give rise to a gap in legal protection. This point is made in Avani Bansals post (Human Rights in Disputed Territories Affixing
Responsibility p 29), which addresses the question of how responsibility for human rights law violations should be affixed in
situations where non-state actors are exercising control over territory.
Economic players, especially multinational companies that operate across national borders, are another category of non-state actor
that has gained unprecedented power to affect the human rights of individuals. Lucia Berro (Where will the US go after Kiobel?
p 28) and Christina Lees (Lessons from Daimler p 28) contributions consider the barriers to accessing judicial remedies in USA
courts for human rights violations committed by businesses abroad. As discussed in these two posts, Kiobel 69 U. S. ____ (2013)
and subsequent cases brought before USA courts concerning corporate accountability for extraterritorial human rights violations
demonstrate how the presumption against extraterritorial application and the limitation of personal jurisdiction continue to pose
barriers to those seeking access to judicial remedies.
Even in jurisdictions where applicants have been afforded access to judicial remedies for human rights violations, justice may
nevertheless go undone. Ravi Niteshs post (Right to Justice Deprived by State: Case of Manorama vs AFSPA from Manipur
p 36) on Indias Armed Forces Special Powers Act is illustrative of this point. In practice, this type of legislation renders security
forces immune from prosecution for human rights violations and in turn, deprives those affected from their right to justice; a right
that cannot be remedied by financial compensation. Claire Overmans contribution (Jones and Others v UK: Immunity or Impunity?
p 35) discusses another jurisdictional barrier to securing justice for human rights violations; state immunity for acts of torture. The
decision of the European Court of Human Rights (ECtHR) in Jones v United Kingdom [2014] ECHR 32, rejected the argument that
by dismissing civil suits alleging torture on grounds of immunity, the UK had violated the applicants right to access justice.
In addition to expanding human rights obligations to non-state actors, Richard Martin (Nonsense on Stilts? Tommy the Chimps
Legal Battle for Non-Human Person Rights in the New York Courts p 39) raises the question of whether the category of human
rights holders can extend to non-human person rights. In other words, does some legal notion of human rights exist for animals?
The case discussed in this contribution, which was filed on behalf of a captive chimpanzee in New York, challenges the dominant
legal paradigm that rights are held by virtue of being human. As Martin asks, is litigation based on the rights of humans really the
right way forward [in ensuring greater protection for animals]?
Although courts often take a cautious approach towards extending jurisdiction over human rights claims, some have endorsed
a broader understanding of their judicial authority to enforce human rights law. Nurina Allys post (Investigating crimes against
humanity South Africas embrace of universal jurisdiction p 30) examining the case of National Commissioner of the South
African Police Service v South African Human Rights Litigation Service [2013] ZASCA 168, discusses the embrace of universal
jurisdiction by the South African Supreme Court. The decision, which has since been upheld by the Constitutional Court, recognizes
that the South African Police Service are both empowered and required to investigate crimes against humanity committed outside
of South Africa. In addition to domestic courts, Claire Overmans piece (Cyprus v Turkey: Arming the European Court against
States Complacency? p 34), which considers the impact of the recent Cyprus v Turkey decision, illustrates the European Court of
Human Rights progressive approach towards its power to remedy human rights violations. This judgment heralds a new era in the
enforcement of human rights because it is the first time the ECtHR has awarded just satisfaction in an inter-State case under the
Convention.
The UK has a long history of leadership in the area of fundamental rights but there are fears that this reputation may be jeopardised
if calls for the repeal of its Human Rights Act (HRA) are realised. In the wake of the recent general election, the question posed
by Alice Donald is one that is on the minds of many in the UK, where next for the European Convention? (Brighton and Beyond
Where Next for the European Convention on Human Rights? p 32). The European Court is currently undergoing a process of
reforms and it is hoped that implementation of these will clarify and realign the relationship of the Court with national jurisdictions
and, in turn, quell some of the hostility directed at the Convention system. In the event that the HRA is repealed, Sionaidh Douglas
Scotts post (Why the UK Should Embrace the EU Charter of Fundamental Rights p 33) offers some hope. Her contribution
discusses how the EU Charter of Fundamental Rights could continue to provide important fundamental rights protections to
individuals against member states

26

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Chapter 2

In addition to new categories of actors, globalisation has called for human rights law to respond to modes of human rights
violations that were once not envisaged. Louise Arimatsus post (The Geography of International Law and the Cyber Domain p
37) addresses the challenge posed by advancements in cyber technology. As pointed out by Arimatsu, this type of conduct does
not sit comfortably with the standard of effective control over territory and/or persons, which has been developed and endorsed
by the human rights monitoring bodies to determine the extraterritorial applicability of human rights obligations. The criteria that will
be used by courts in determining when international human rights law obligations are triggered by cyber operations remains to be
seen.
The contributions in this chapter show that although human rights law appears to be moving towards greater extraterritorial
application and non-state actors are increasingly being subjected to human rights scrutiny, many challenges remain. The common
message that emerges from the posts herein is that those charged with enforcing human rights law should respond to these
challenges with increased efforts to ensure remedies for those whose rights have been violated.
Dr Helen McDermott is a Postdoctoral Research Fellow with the Oxford Martin School Programme on Human Rights for Future
Generations at the University of Oxford.

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Chapter 2

Where will the US go after Kiobel?


By Lucia Berro | 19th September 2014

Last year, the landmark US Supreme Court decision of Kiobel v Royal Dutch Petroleum Co. 133 S.Ct. 1659 (2013) held that the
presumption against extraterritorial application of US law applies to the Alien Tort Statute (ATS). This was significant as the
ATS potentially opens US federal courts to claims by non-US citizens harmed by violations of the law of nations a category of
international law that includes war crimes, crimes against humanity, and torture. Although Kiobel left open the possibility of resort to
US courts for claims that touch and concern the territory of the US with sufficient force, Kiobel significantly restricts resort to US
Courts in order to vindicate human rights violations committed against non-US citizens abroad. The direction of the case law since
Kiobel has been uncertain and inconsistent. This post tracks this scattered path.
The first significant decision came from the 11th Circuit in Chiquitain Case No. 12-14898 in 2014. This case alleged that Chiquita, a
US based company, provided funding and logistical support to a Colombian paramilitary group (the AUC). In the context of parallel
criminal proceedings, Chiquita pleaded guilty to engaging in more than 100 transactions with the AUC and was fined $25,000,000.
However, in respect of civil proceedings, the 11th Circuits majority declined jurisdiction. The majority emphasised that all relevant
conduct took place outside the United States and concluded that Chiquitas status as a US corporation was insufficient to rebut the
presumption against extraterritoriality. Conversely, in dissent, Judge Martin considered that because Chiquitas decisions to pay the
AUC were made at company headquarters on US soil the case touch[ed] and concern[ed] the territory of the United States. She
wrote that in holding otherwise, we disarm innocents against American corporations that engage in human rights violations abroad.
I understand the ATS to have been deliberately crafted to avoid this regrettable result.
Similarly in August, 2014 Judge Scheindl dismissed a claim accusing Ford Motor and IBM of encouraging human rights abuses in
apartheid-era South Africa. The Judge said that the plaintiffs failed to show any relevant conduct by Ford and IBM within the US
to justify holding the companies liable. Notwithstanding she wrote [t]hat these plaintiffs are left without relief in an American court is
regrettable. But I am bound to follow [Kiobel] no matter what my personal view of the law may be.
Conversely, in July 2014, the 4th Circuit issued a decision on the Abu Ghraib case, No.13- 1937. This lawsuit was filed by four Iraqi
torture victims against CACI International Inc, and CACI Premier Technology, Incboth with headquarters in the US. The plaintiffs
argued that CACI participated in war crimes, including torture and other illegal conduct, when providing interrogation services at
Abu Ghraib prison in Iraq. According to an official investigation by the US Department of Defence numerous incidents of sadistic,
blatant, and wanton criminal abuses were inflicted on several detainees. The 4th Circuit held that Kiobel is not a categorical bar
against all ATS claims based on conduct abroad. Rather, it concluded that the plaintiffs ATS claims did touch and concern the
territory of the US with sufficient force to displace the presumption because, (a) CACI is a US corporation, (b) the employees who
allegedly mistreated Abu Ghraib prisoners were US citizens and (c) CACIs actions were at a US military facility operated pursuant
to a contract with the US Government.
Finally, last week, the 9th Circuit allowed an ATS case against Nestl, Cargill & ADM to proceed. The case, filed by former child
slaves forced to harvest cocoa in Ivory Coast, alleges that the companies aided and abetted child slavery by providing assistance
to Ivorian farmers in an attempt to reduce costs. The decision (an expanded replacement of an earlier opinion) vacated the district
court decision stating, the prohibition against slavery is universal and may be asserted against the corporate defendants in this
case.
Notwithstanding international pressure to enforce Ruggies Third Pillar of access to judicial remedies for human rights violations
by transnational businesses, the case law thus far is discouraging. This is because, as Justice Kennedy noted in his concurring
opinion in Kiobel, the majority opinion left significant questions unanswered. The effect of this decision on future litigation against
businesses for liability under the ATS for acts occurring outside the US remains unclear, aggravating an already uphill battle to hold
US corporations accountable for abuses abroad.
Lucia, a Uruguayan/Italian national, holds a Magister Juris from the University of Oxford where she took part in the Weidenfeld
Scholarships and Leadership Programme.

Lessons from Daimler

By Christina Lee |16th February 2014


On January 14, 2014, in the case of Daimler AG v Bauman et al 134 S. Ct. 746 (2014) the United States Supreme Court held that
Daimler AG (Daimler) could not be sued in federal court in California for injuries allegedly caused by conduct of its Argentinian
subsidiary when this conduct took place entirely outside of the United States.
The case arose out of a claim brought by twenty-two Argentinian residents alleging that during Argentinas Dirty War in the 1970s
and 1980s, Mercedes-Benz Argentina worked with state security forces to kidnap, torture, and kill workers, and seeking damages

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for human rights violations. After the plaintiffs brought suit in federal court in California, Daimler moved for lack of personal
jurisdiction, which the district court granted. The Ninth Circuit eventually reversed with Judge Reinhardt, writing for the panel,
asserting that an agency relationship existed between Mercedez-Benz USA (MBUSA), an indirect subsidiary of Daimler, and
considerations of reasonableness did nor bar exercise of general jurisdiction.

In the Supreme Court, the majority reversed the decision of the Ninth Circuit. They rejected Judge Reinhardts agency relationship
reasoning, noting that the Ninth Circuits conception of agency theory for personal jurisdiction would be sweeping and always yield
a pro-jurisdiction answer. The Court went even further to say that even if MBUSAs contacts were attributable to Daimler, Daimler
still did not have enough contact to render general jurisdiction. Relying on Goodyear 131 S. Ct. 2846 (2011) and International Shoe
326 U.S. 310 (1945), the Court asserted that the correct inquiry for a foreign corporation was not whether the corporations in-forum
contacts could be in some sense continuous and systematic but whether the affiliations with the State are so continuous and
systematic as to render it essentially at home in the forum state. The Court found that the Ninth Circuit erred in finding personal
jurisdiction, for two main reasons. First, neither Daimler nor MBUSA was incorporated in California nor had a principle place of
business in California. Second, consideration had to be had of international comity in cases involving foreign governments.
Given the oral arguments, the decision from the overwhelming majority is unsurprising almost all the justices expressed
scepticism at the plaintiffs attorneys arguments. Moreover, as evidenced from the questions and the opinion, the Court expressed
strong reservations about the sweeping nature of Judge Reinhardts Ninth Circuit opinion and the desire to limit forum shopping for
litigants.
Nevertheless, for those who had hoped, or even wished, for the Supreme Court to clarify the jurisprudence in favour of foreigners
who bring suit in the United States in the wake of Kiobel, 133 S.Ct. 1659 (2013) the Daimler opinion was a disappointment and has
similarly far-reaching repercussions compared to Kiobel. Justice Ginsburgs opinion rejected the notion that the U.S. federal courts
had a particular interest in international human rights (briefly mentioning Kiobel) and limited the importance of agency theory and
corporate liability, relying on the level of contact in determining personal jurisdiction.
However, Daimler serves as a lesson for those who want to access U.S. federal courts. Justice Ginsburgs opinion emphasises the
tangential connection between MBUSA, Daimler, and California. This suggests that other states might have served as options as
the Court emphasised that California as a state had such tangential contacts that there could not have been general jurisdiction.
However, given the criteria of principal place of business and headquarters, this suggests that if the plaintiffs had brought suit in
Michigan, or another state, the suit would not have been dismissed based on personal jurisdiction. While Ginsburgs opinion limits
the ability to bring suit compared to the Ninth Circuits sweeping opinion, the framework provided by Goodyear and Daimler may
provide future litigants more clarity in where and how to bring suit so that the case could move beyond the procedural hurdles and
to the merits and the real issues of the case.
Christina Lee is a law student at Harvard Law School.

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Human Rights in Disputed Territories Affixing Responsibility


By Avani Bansal | 14th February 2014

Human rights do not have any borders. It is vital to address underlying human rights issues in disputed territories, regardless of
the political recognition or the legal status of a territory Navi Pillay.
Under normal circumstances, the responsibility of protecting human rights of persons residing within the territory of a State lies
with the de-jure State (and its de-jure government). The problem with regards to the application of human rights law arises in
disputed territories where the legitimacy of control over the territory is disputed, thereby creating a protection gap. So how should
we affix responsibility for human rights violations in territories which are under the effective control of non-State actors, especially
since non-State actors cannot ratify human rights instruments such as the International Covenant on Civil and Political Rights?
These questions present a quagmire for a human rights lawyer. This piece suggests the ways in which one could seek to affix
responsibility on non-State actors for upholding human rights in disputed territories.
One way to impose responsibility on nonState actors for protecting human rights of people in disputed territories is by arguing,
that since human rights norms contained in the Universal Declaration of Human Rights (UDHR) are customary international law,
they need to be guaranteed by the authority having effective control of the territory, regardless of its political status internationally.
The responsibility to protect these human rights norms which form part of customary international law does not require specific
accession to, or ratification of, treaties by concerned authorities.
Another argument could be that since non-state actors have responsibility for human rights violations in International Human Rights
Law (IHRL) and International Humanitarian Law (IHL), they ipso facto have responsibility in disputed territories where they have
effective control. While Public International Law (PIL) in general has developed in order to regulate the conduct of States in their
international relations, IHRL and IHL have developed specific particularities, aimed at imposing certain types of obligations on
others, including individuals and non-State actors.
It is generally accepted that IHL related to non-international armed conflicts, in particular the provisions contained in common article
3 of the Geneva Conventions and, when applicable, Protocol II, applies to parties to such a conflict, whether State or non-State
armed groups. It is also recognized that rules of customary international law related to non-international armed conflicts, such as
the principles of distinction and proportionality, are applicable to non-State armed groups.
Concerning international human rights obligations, the traditional approach has been to consider that only States are bound
by them. However, in evolving practice in the Security Council and in the reports of some special rapporteurs, it is increasingly
considered that under certain circumstances non-State actors can also be bound by international human rights law and can
assume, voluntarily or not, obligations to respect, protect and fulfil human rights. For instance, the Security Council has called in
a number of resolutions, such as Resolution 1564 (2004) and Resolution 1894 (2009), on States and non-State armed groups to
abide by international humanitarian law and international human rights obligations, though these have been in the context of an
armed conflict.
These arguments set a stage to better protect human rights in disputed territories, thereby avoiding their protection gap. It is clear
that the international legal order is expanding slowly and human rights will not remain State-centric for long. However in disputed
territories today, de-facto State governments can be seen as non-State actors with effective control, and therefore obligated to
enforce human rights.
Avani did the BCL and an MPhil in Law (International Environmental Law) at the University of Oxford and is currently setting up her
legal practice in India.

Investigating crimes against humanity South Africas embrace of universal jurisdiction


By Nurina Ally | 10th January 2014

What business is it of the South African authorities when torture on a widespread scale is alleged to have been committed by
Zimbabweans against Zimbabweans in Zimbabwe? It is that question that is at the heart of this appeal. (Judge Navsa, National
Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre [2013] ZASCA 168 paragraph
5)
In a ground-breaking judgment, handed down in November 2013, the South African Supreme Court of Appeal resoundingly affirmed
South Africas international obligations to exercise jurisdiction over alleged crimes against humanity, even when committed in
another country. Being the first case that has directly raised the question of South Africas competence to investigate crimes against
humanity, National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre has been
instrumental in testing the exercise of investigative powers of South African authorities, as mandated by the implementation of the
Rome Statute of the International Criminal Court Act, 2002 or the ICC Act.

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The matter dates back to 2008, when the South African Litigation Centre sent a dossier to certain South African authorities
detailing allegations of crimes against humanity (particularly torture) committed against Zimbabwean nationals in Zimbabwe. The
memorandum implicated senior officers in the Zimbabwean government. For various reasons (including resource constraints,
diplomatic considerations, and scepticism regarding the evidence placed before them), the South African authorities declined to
initiate an investigation.
The authorities asserted that the obligation to investigate crime was territorially limited to inhabitants of South Africa and their
property. Furthermore, they argued that in terms of the ICC Act, the actual presence of the perpetrator was required in South Africa
before an investigation could be initiated (it was claimed by the authorities that the alleged perpetrators were not present in South
Africa, and that the majority had never previously visited South Africa). Ultimately, the Supreme Court of Appeal rejected these
arguments and the South African Police Service was ordered to initiate an investigation into the alleged offences.

Charting the development of the universality principle and the foundations of international criminal justice, the Court emphasised
that the purpose of the ICC Act is to ensure that South Africa exercises international criminal jurisdiction over crimes against
humanity. Through the enactment of the Act, South Africa had undertaken to fulfil its obligations as a party to the Rome Statute. The
Court made three principal findings regarding these obligations.
1. First, it affirmed the power of South African authorities to initiate an investigation into conduct criminalised in terms of the ICC
Act, even where such crimes have been committed extra-territorially.
2. Second, it declared that appropriate authorities may initiate an investigation into such crimes irrespective of whether or not
the alleged perpetrators, or their victims, are present in South Africa. In this regard, and despite a more restrictive approach
adopted in some foreign jurisdictions, the Court held that a strict presence requirement defeats the wide manner in which
our legislation is framed, and does violence to the fight against impunity. However, the Court does recognise that if there is
no prospect of the alleged perpetrators presence then it would be arguable that no purpose would be served by initiating an
investigation.
3. Third, the Court recognised that the ambit of investigative powers is restrained in that, absent the consent or co-operation of
foreign states, authorities cannot pursue an investigation in another country. It should be noted, however, that in the present
case the complainants had not called for the requested investigation to extend outside of the borders of South Africa and had
offered to make witnesses available to authorities within South Africa.
These broad principles are to be welcomed as giving proper effect to the obligations that South Africa has undertaken under
international law. Whilst there is no doubt room for further development, the judgment has set fertile ground for the possibility of
pursuing the prosecution of crimes against humanity in South African courts.
In the most recent set of developments, application for leave to appeal has been made to the Constitutional Court of South Africa.
Whilst it has yet to be seen if the Court will grant leave for the matter to be heard, recent judgments from the highest court suggest
a strong emphasis on ensuring that South Africa fulfils its international law obligations. It is hopeful then that the Constitutional

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Court will reinforce the general thrust of the principles endorsed by the Supreme Court of Appeal.
Nurina Ally recently served as a law clerk at the Constitutional Court of South Africa and currently works at a Johannesburg-based
law firm. She writes in her personal capacity.

Brighton and Beyond Where Next for the European Convention on Human Rights?
By Alice Donald | 20th December 2014

Two reports have been released which shine a spotlight on the relationship between national authorities (especially parliaments)
and the European Court of Human Rights (ECtHR). Both take stock of the reforms initiated under the UK Governments
chairmanship of the inter-governmental arm of the Council of Europe, the Committee of Ministers, in 2011-12, culminating in the
Brighton Declaration.
The first report, by the parliamentary Joint Committee on Human Rights (JCHR), recommends that the UK should ratify Protocol 15
of the European Convention on Human Rights (ECHR). The second report by the Committee on Legal Affairs and Human Rights
(CLAHR) of the Parliamentary Assembly of the Council of Europe, examines how to ensure the future effectiveness of the ECHR; it
also (among other steps) encourages states to ratify Protocol 15.
In the JCHRs view, the most significant aspect of Protocol 15 is the addition to the Preamble of the Convention of references to the
principle of subsidiarity and the doctrine of the margin of appreciation. Both reports are keen to dispel common misconceptions
about what these principles mean. They are not, the JCHR stresses, a basis either for asserting the primacy of national law over
the Convention, or for demarcating national spheres of exclusive competence, free from Strasbourgs supervision. Rather, as the
CLAHR ventures, ensuring the long-term effectiveness of the Convention system is a joint enterprise for the executive, legislative
and judicial organs, at both the national and European levels (para 5 of the Explanatory memorandum).
The JCHR welcomes Protocol 15 as signifying (para 3.17) a new era in the life of the Convention, an age of subsidiarity, in which
the emphasis is on States primary responsibility to secure the rights and freedoms set out in the Convention. It states that Protocol
15 creates opportunities and obligations both for national actors and for the Court itself.
Protocol 15 should not be viewed by national actors governments, legislatures and courts as an opportunity to assert their
superiority over the ECtHR. Instead, the Protocol places a greater onus on governments to conduct detailed assessments of, and
justify the reasoning behind, the Convention-compatibility of their laws and policies and on parliaments to subject executive action
or inaction to conscientious and well-informed scrutiny and debate. As I have recently argued at the Council of Europe, and as
the CLAHR report underscores, too few parliaments in Council of Europe states are presently equipped to conduct such rigorous
human rights oversight the JCHR being one of a few striking exceptions.
The principles to be enshrined in the Preamble via Protocol 15 provide strong incentives for national authorities to strengthen their
systems of human rights protection. As the Courts President Dean Spielmann notes (p. 12), the margin of appreciation is neither
a gift nor a concession to states, but an incentive to earn the deference of the Court. The JCHR argues, for instance, that it should
incentivise ministers to continue to improve the quality of the human rights memoranda that accompany Bills, and create more
opportunities for informed parliamentary consideration of Convention-compatibility issues.
The JCHR gives equal focus to the implications of Protocol 15 for the ECtHR. It urges the ECtHR (para 3.19) to accelerate and
make more transparent the recent trend in its case law that pays respectful attention to detailed and reasoned assessment
by national authorities of the Convention-compatibility of laws and policies (exemplified by the judgment in Animal Defenders
International v UK Application No. 48876/08).
The practical import of Protocol 15 is as yet unknown. It will not come into force until it has been ratified by all 47 states (to date, ten
have done so), which could take years. Meanwhile, the CLAHR has some more immediate recommendations.
It urges national authorities to discharge with renewed urgency their obligations under the Convention to implement ECHR
standards and ECtHR judgments in order to stem the flood of applications to the ECtHR.
It implores the Committee of Ministers to support the Court financially to dispose of its (once mountainous, but now reducing)
backlog of cases and to be tougher with recalcitrant states, including by deploying its (as yet unused) power to initiate
infringement proceedings.
The CLAHR report also reflects on more fundamental suggestions for reform of the Convention system. It rejects proposals to
turn the ECtHR into a constitutional court, at the expense of its role as the guardian of individual rights. The CLAHR also urges

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vigilance against reform plans that appear to be motivated by a desire to dismantle the Court and undermine its authority and
any backsliding on either the rights enshrined in the Convention, the Courts dynamic interpretation of those rights, or the right of
individual application.
The message is clear: while Protocol 15 remains on the far horizon, political threats to the authority of the ECtHR are gathering
and will be resisted.
Dr Alice Donald is a Senior Lecturer in the Department of Law and Politics at Middlesex University.

Why the UK Should Embrace the EU Charter of Fundamental Rights


By Sionaidh Douglas Scott | 28th November 2014

The UK evinces a certain amount of scepticism for both human rights and for Europe. There has been much publicity about the
plans of a Conservative government to repeal the UK Human Rights Act, should they be elected with a majority at the next general
election. However, if the Human Rights Act is repealed, the EU Charter of Fundamental Rights would still remain in force in the UK.

Perhaps, unsurprisingly, the Charter has also come under attack, for example by the 2014 recommendation of the House of
Commons European Scrutiny Committee, that the UK Parliament adopt legislation to disapply the Charter in the UK. Eurosceptics
have woken up to the existence of the Charter. I believe that the Committee is misguided in its call for the Charters disapplication.
Much of the Committees argument targets a lack of clarity in the Charter, including a fear that it could be used to extend EU
competences. The report also expresses frustration that the UKs so-called opt-out, in Protocol 30 of the Lisbon treaty, is incapable
of operating as such, despite the claims made for it by politicians at the time of its drafting. However, while there are some
uncertainties in the Charters application, these are no greater than those applying in human rights law generally, and European
Court caselaw is in any case clarifying this law.
On the other hand, we should be clear that the alternative of disapplying the Charter would lead to far greater legal uncertainty
and also expose the UK to large fines for breaching EU law. Further, the UK would also risk an action being brought under Article
7 TEU, which allows the EU to suspend the membership rights of a member state where that State is in serious and persistent
breach of the EUs common values, which include fundamental rights. Art 7 has not been put into effect to date, and it would
be highly regrettable if it were to be applied to the UK. In that case, there would also be some irony the eurosceptics longed
for Brexit would occur not through an in-out referendum but through the means of expulsion from the EU a humiliating and
shameful end to the UKs relationship with the EU.
But crucially, what the Committee report also ignores are the important safeguards that the Charter offers against an overreaching
EU safeguards which have become visible in cases such as Digital Rights Ireland, in which the European Court invalidated

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a whole EU measure for its failure to comply with privacy rights in the Charter. This legislation required telecoms companies to
retain personal telephone and internet records, with the aim of ensuring that state authorities could use such records in future
investigations. The ECJ criticized the sweeping nature of the measure, holding that it entails an interference with the fundamental
rights of practically the whole European population. Why should UK citizens lack the protection of the Charter in areas such as
these?
One cannot ignore Charters role in upholding human rights within the scope of EU law. The Charter provides an important bulwark
against abuse by the EU of its powers, but it is to be hoped that the EU would not commit the very gravest human rights violations,
such as torture or inhuman and degrading treatment. Yet many EU states are still regularly found in violation of even the core
human rights such as Art 3 ECHR, the prohibition on torture. States such as Greece have difficulties in complying with human rights
obligations to asylum seekers. In N.S., the ECJ gave precedence to fundamental rights over the obligations of member states
to comply with the provisions of the EU Dublin II Regulation, recognising that member states must not return asylum seekers to
other EU states when there would be a real risk of their being subjected to inhuman or degrading treatment within the meaning
of Article 4 EU Charter. In this way, the Charter provides important protection to individuals against other member states abusing
fundamental rights. The further the EU goes down the road of requiring mutual recognition of other states practices (whether it
be of food standards, technical requirements or criminal justice systems) the more the Charter is needed to provide human rights
based exceptions to otherwise enforced recognition.
Therefore, rather than seeking to disapply the Charter in the UK, perhaps at the next general amendment of the EU treaties, the UK
should seek to repeal Protocol 30 completely.
Sionaidh Douglas-Scott is professor of European and Human rights law at the University of Oxford. She has published widely in the
field of EU law and human rights.

Cyprus v Turkey: Arming the European Court against States Complacency?


By Claire Overman | 23rd May 2014

The European Court of Human Rights (ECtHR) recently handed down judgment in Cyprus v Turkey [2014] ECHR 478. This case,
the first to award damages to an applicant government in an inter-State case, may mark a development towards the ECtHRs more
extensive use of damages as a punitive device against States.

This judgment represents the culmination of over 10 years of legal developments. In 2001, the ECtHR found various violations of
the European Convention on Human Rights (ECHR) by Turkey, arising out of Turkish military operations in northern Cyprus in
the 1970s, the continuing division of the territory of Cyprus, and the activities of the Turkish Republic of Northern Cyprus. Under

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Article 41 ECHR, a party is entitled to just satisfaction following a finding of violation. However the ECtHR held that the issue
of just satisfaction was not ready for decision. It was not until March 2010 that the Cypriot government submitted to the Court its
claims for just satisfaction.
The first question for the Court to consider was whether it was too late for Cyprus to make such a claim. It noted that general
international law does, in principle, recognise the obligation on applicant governments in inter-State disputes to act without undue
delay. However, it pointed out that, as the delay in this case occurred (a) due to the Court holding that the issue was not ready
to be decided; (b) following judgment on the merits, meaning that Turkey would anticipate developments; (c) without the Cypriot
government renouncing or waiving its right to just satisfaction, the claim could still validly be made over a decade later.
The second issue was whether just satisfaction could be claimed in an inter-State case. Up until this point, damages had only ever
been awarded to individual complainants whose rights had been violated by a State. In the only previous case to consider this
issue, Ireland v the United Kingdom [1978] ECHR 1, the applicant government had stated that it did not invite the Court to consider
just satisfaction.
In its judgment, the Court pointed out that the general logic of the just satisfaction rule was directly derived from principles of public
international law on State liability, one of which was that the breach of an engagement involves an obligation to make reparation
in an adequate form. It therefore considered that Article 41 did apply to inter-State cases, but noted that whether granting just
satisfaction was justified has to be assessed and decided by the Court on a case-by-case basis. Relevant factors included the
type of complaint made by the applicant Government, whether the victims of violations could be identified, and the main purpose of
bringing the proceedings.
The Court then imposed a caveat. According to the very nature of the ECHR, it was the individual, not the State, who was primarily
injured by a violation of Convention rights. Therefore just satisfaction should always be awarded for the benefit of individual victims.
In the present case, the claims submitted on behalf of 1456 missing persons and enclaved Greek Cypriots were therefore found to
merit an award of just satisfaction. This was assessed at 30 million and 60 million respectively.
As noted by the concurring judges, the present judgment heralds a new era in the enforcement of human rights. The Court has
made clear that States will be held accountable in damages for invasions, wars, and other large-scale violations of the rights of
citizens of other States. An interesting point raised by Judges Pinto de Albuquerque and Vuini was that the just satisfaction
awarded in this case, without reference to practicalities such as division of the award between individuals, was clearly intended
to be punitive, rather than compensatory. One wonders whether this mechanism could be used more widely in future to provide
the Court with greater weaponry when States fail to implement its judgments. It is not hard to imagine, for instance, UK prisoners
launching fresh claims against the State for its continued non-implementation of the judgment in Hirst v UK [2005] ECHR 681,
where a blanket ban on prisoner voting was deemed to violate the Convention. If such a claim were to succeed, would the Court
impose a more punitive measure of just satisfaction? Such a development would lead to an interesting change in dynamic between
domestic courts and the ECtHR.
Claire is a former Editor and Communications Manager of the Oxford Human Rights Hub. She will be commencing pupillage at One
Brick Court in October 2015.

Jones and Others v UK: Immunity or Impunity?


By Claire Overman | 19th January 2014

The decision of the European Court of Human Rights in Jones and Others v UK [2014] ECHR 32 represents a missed opportunity
to take a lead in developments in international law concerning state immunity for acts of torture. Yet, it expresses a cautiously
optimistic view that such developments are set to continue.
The applicants were British nationals living in Saudi Arabia. They brought civil claims in the UK courts for damages for alleged acts
of torture inflicted upon them by various agents of the Saudi Arabian government, including Lieutenants, police officers and prison
governors. These claims were brought against the state of Saudi Arabia itself, and against these agents. The UK House of Lords
rejected these claims holding that, under the State Immunity Act 1978, foreign states were generally immune from jurisdiction in the
UK courts, and that this immunity extended to their government officials.
The applicants appeared before the ECtHR, arguing that this grant of immunity to Saudi Arabia and its officials violated their right of
access to court under Article 6 of the European Convention on Human Rights. The ECtHR, however, disagreed, holding that there
had been no violation.
It began with the premise that sovereign immunity is a concept of international law, by virtue of which one state shall not be subject
to the jurisdiction of another. As such, it pursues the legitimate aim of promoting comity and good relations through the respect
of another states sovereignty. The next question was whether the UKs grant of immunity to foreign states and their officials

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was a proportionate way of achieving this aim. In answering this, the ECtHR stressed that the need to interpret the Convention
harmoniously with other rules of international law meant that, if the UK measures reflected generally recognised rules of public
international law on state immunity, they could not in principle be disproportionate.
The ECtHR accepted that there were some exceptions to state immunity in public international law. However, the recent decision
of the International Court of Justice in Germany v Italy (I.C.J. Reports 2012, p.99) holding that a state was not deprived of immunity
simply because it was accused of serious violations of international human rights law, was important. For the ECtHR, it provided
conclusive evidence that international law had not moved on sufficiently from its previous decision in Al-Adsani v UK (Application
no. 35763/97) in which state immunity was upheld in the context of torture allegations.
With regard to immunity of state agents for acts of torture, the position was less clear. The ECtHR noted that international law
instruments and materials on state immunity give limited attention to that particular question. Whilst accepting that there was some
emerging support in favour of a special rule in public international law in cases concerning civil claims for torture lodged against
foreign state officials, the bulk of the authority was in favour of the argument, made by the UK House of Lords, that a states right to
immunity may not be circumvented by suing its agents instead. As a result, the Court held that the grant of immunity to the Saudi
officials reflected generally recognised rules of public international law.
This decision is disappointing in two respects. First, on the facts of the case, the applicants have been left with no real means of
redress for the alleged torture suffered at the hands of the Saudi authorities. Rosalind English notes, in the UK Human Rights Blog,
that judicial avenues are not the only, or indeed not even the most appropriate means to secure accountability. However, this
overlooks the reality that governments, shackled to diplomatic concerns, are likely to be much less inclined than courts to act upon
allegations that other states have been complicit in torture. The very role of courts, as independent bodies, is to rule on difficult
issues without political bias.
Secondly, the Court undertakes no real analysis of the question of what should happen when two important international
principles international comity, and the denunciation of torture compete. It relies on the existence of a historical status quo as
a conclusive reason for maintaining it, despite itself acknowledging that, due to the recognition in some countries of an exception
to state immunity for acts of torture, international opinion may be changing. This very dynamism should have pushed it to
engage independently with underlying principles in this area. In not so doing, the ECtHR has missed this opportunity to assist the
development of this issue with an authoritative international judgment.
Claire is a former Editor and Communications Manager of the Oxford Human Rights Hub. She will be commencing pupillage at One
Brick Court in October 2015.

Right to Justice Deprived by State: Case of Manorama Vs AFSPA from Manipur, India
By Ravi Nitesh | 7th January 2015

Recently, in the case of Union of India and ANR v State of Manipur and NR Case 14726 -14730 OF 2011, which concerned
Thangjam Manorama Manipur, (who was allegedly killed in 2004 by Assam Rifles, a security force of government), the Supreme
Court of India directed the Government of India to award 10,00,000 INR or 10,340.00 GBP as compensation to Manoramas
mother. But the serious concern is that in spite of such direction, the court could not spell any judgment against the culprits in the
case of Manorama and other similar cases yet.
I visited Manoramas house two months ago and met her brother and mother. My visit was part ofa solidarity visit where I
participated in Asian solidarity events organized by May 18 Memorial, Forum Asia and Just Peace Foundation at Imphal, Manipur.
I dont want to speak anything were the words of Manoramas mother Thangjam Khumanleima, when it was conveyed by our local
host, a human rights activist, Babloo Loitongbam, that we all came from various parts of India and from abroad to meet her. We
were there for 40 minutes but she remained silent and appeared full of sorrow, despair and anger.
Manoramas brother Thangjam Dolen talked to us. He described what happened on that night of July 10-11 2004, when soldiers of
Assam Rifles knocked on the door, called Manorama outside of house, tortured her, and forcefully took her away. They alleged that
Manorama was associated with PLA (Peoples Liberation Army), an insurgent group in north east India. The denial by Manorama
did not stop them. After few hours, the dead body of Manorama was found on the roadside. People came to protest as they noticed
that there were bullet shots in her private parts and therefore suspected rape by the soldiers.
There were massive protests across Manipur. 10 women had staged a nude protest in front of the historical Kangla Fort with a
banner reading Indian Army Rape Us. These protests had forced the state government to order for an inquiry under the Justice
Upendra Commission. However, Assam Rifles went to higher court in August 2004 and petitioned that no inquiry can be made as
the concerned soldiers were protected by the Armed Forces Special Powers Act (AFSPA) and therefore, as per the AFSPA rule,

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a prior sanction is required from central government. While the Higher court (Guwahati High Court) had passed an order in the
year 2010 and upheld that an inquiry commission could be set-up and the State of Manipur is authorised to act on the report of
commission, however the Government of India moved to Supreme Court against this order. Now, Supreme Court of India agreed to
hear the petition but only ordered compensation of Rs. 10 lakhs (INR) to the victims family.

It is a case that witnessed massive protest. Still 10 years on, the order was for compensation, not justice. There are many such
cases, of rapes, fake killings, torture, reported and unreported in the AFSPA imposed areas of North East Region of India (through
AFSPA 1958) and in Jammu & Kashmir (through AFSPA 1990). AFSPA provided extra-ordinary powers of shoot on suspicion,
search and arrest. It also provides impunity to armed forces with its section 6 where no criminal case can be lodged against any
armed force personals without prior sanction from central government. Unfortunately, the sanction has not ever been provided, not
even in a single case.
AFSPA is a draconian law. It is responsible for gross human rights violations by security forces and many national/international
human rights groups including UN bodies have called for India to repeal it, but it is still surviving.
During the recent parliamentary elections in India, the state unit of Manipur of BJP promised to repeal AFSPA if voted into power. It
has been 7 months now since the BJP has come to power, but AFSPA remains operational.
This scenario where the right to justice of common people has been deprived by impunity granted to functionaries of state violence
has only worsened peoples despair and made them disillusioned by the state. Now it is upon the new government of India and civil
society, together with activists from all over the globe to work towards the end of culture of violence and to ensure repeal of AFSPA
and restore the right to life, the right to justice.
Ravi Nitesh is a freelance writer, Founder-Mission Bhartiyam, Convenor-Save Sharmila Solidarity Campaign (A nationwide
campaign for repeal AFSPA).

The Geography of International Law and the Cyber Domain


By Louise Arimatsu | 25th February 2015

The geographical scope of the law of armed conflict (LOAC) has engaged the interest of IHL experts for some years dividing
opinion as to whether the reach of the law is determined by the territorial border, the location of the parties to the conflict, or
restricted to the site of the hostilities. This is more than just a theoretical question since the consequence of adopting one particular

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view rather than another can result in different findings as to the legality of the conduct in question. International human rights law
(IHRL) experts have likewise concerned themselves with the geographical scope of IHRL albeit in a different vernacular given the
different point of departure.

Since the purpose of IHRL is to regulate the states relations with persons in its territory, in contrast to LOAC, there is consensus
that the law applies throughout the states territory. However, divisions have surfaced on whether a states obligations are
geographically limited to the states sovereign territory or, in exceptional circumstance, such obligations arise extraterritorially. Over
the years, member states of the European Convention on Human Rights have accepted the idea that their obligations are triggered
extraterritorially in situations where they have effective control over persons and/or territory irrespective of sovereignty. Arguments
persist over specific situations but the principle is now well-established.
The UN human rights bodies have long favoured a similar approach when interpreting the applicability of a states obligations
pursuant to the ICCPR. In General Comment 31, the Human Rights Committee expressly maintained that a State party [to the
ICCPR] must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State
Party, even if not situated within the territory of the State Party. Not all states subscribe to this interpretation including, for example,
the US which has consistently asserted that the Covenant does not apply extraterritorially.
Measures adopted by the US following the Snowden disclosures have reinforced this distinction exemplified by the legal reforms
(even if inadequate) which have been introduced to protect the privacy of US citizens in contrast to the policy announcement
that the US would take into account that all persons should be treated with dignity and respect, regardless of their nationality or
wherever they might reside when conducting digital surveillance operations.
But the challenge does not end there, since even if all states accepted the extraterritorial applicability of the Covenant, the
traditional notion of effective control sits uncomfortably with the nature of digital operations. One option is for states to agree that
control over digital communication infrastructure through tapping or penetration amounts to effective control as suggested by the
UN High Commission for Human Rights. An alternative way forward is for states to concede that their obligation is to respect the
rights of all persons irrespective of geographical location or effective control. In time this latter option may prove to be the more
attractive for technologically advanced states including, most notably the US, demonstrated by the experience of the Obama
Administration following the cyber-attack on Sony Pictures in November 2014.
That the hackers violated US criminal law was not in doubt: the attack caused significant destruction and constituted theft on an
unprecedented scale. As evidence suggesting North Koreas involvement in the attack mounted, legal experts opined that the
hack also constituted a violation of international law: namely, a breach of US sovereignty. But when Sony cancelled the Christmas
release of The Interview in response to subsequent threats by the hackers, as far as the American public were concerned, the

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perceived wrongdoing constituted above all an attack on the freedom of expression. This sentiment was echoed in a White
House statement which stated, we take seriously North Koreas attack that aimed to threaten artists and other individuals
with the goal of restricting their right to free expression. But if North Korea does have a legal duty not to violate the freedom of
expression of US citizens it must surely be on the basis that its Covenant obligations are extraterritorial in scope. This raises the
question of whether, as societies become increasingly networked, states will feel the need to re-evaluate the scope of their IHRL
obligations, if only for reasons of self-interest.
Dr Louise Arimatsu is an Associate Fellow at Chatham House and Honorary Senior Research Fellow in the Law Department at
Exeter University. She was a member of the Group of Experts on the Tallinn Manual on the International Law Applicable to Cyber
Warfare.

Nonsense on Stilts? Tommy the Chimps Legal Battle for Non-Human Person Rights in the
New York Courts
By Richard Martin | 15th January 2015

Tommy has been imprisoned for most of his life. Locked in a room in upstate New York, he has no money and cannot speak any
languages. With the help of lawyers, he is now invoking the historic writ of habeas corpus to challenge his detention. Tommy,
though, is not a human; he is a chimpanzee, and his representatives are on a quest for non-human person rights for animals.
What are lawyers and those seeking better protection for animals to make of Tommys case?
The legal battle, which began over a year ago, reached the New York Third Appellate Court last month, in the case of ex rel.
The Nonhuman Rights Project v Lavery (2014 NY Slip Op 08531). Recognizing the novelty of the case, the court noted that
animals have never been explicitly considered capable of asserting rights under US law. Rejecting the appeal, it reasoned that
chimpanzees, unlike humans, cannot submit to societal responsibilities or be held legally accountable for their actions and,
therefore, it would be inappropriate to confer upon such animals legal rights, including the right to liberty. To support this, the court
pointed towards the historical ascription of rights with responsibilities in America stemming from principles of social contract, as well
as the consistent definition of legal personhood in terms of both rights and duties.
The judgment poses a central conceptual question concerning the nature of rights-based claims and the extent of correlative
duties. For legal theorists, this maps onto well-worn jurisprudential debates, where the answer depends on whether we grant rights
an internal logic or complexity and how this to be understood. Off the jurisprudential map though, the courts reasoning remains
curious. Firstly, biologists would probably remind us that whether animals can in fact bear social responsibilities is less clearcut than the court would like to think. Chimpanzees such as Tommy share 99% of our human DNA and can demonstrate highly
complex cognitive functions, such as self-awareness and self-determination. Anyway, as a society would we not be willing to say
that we have submitted a social responsibility to the likes of guide dogs tasked with assisting the blind or police horses used on our
streets? Secondly, the strict aligning of rights with duties, pinned onto the responsibilities owed under the courts vague and sparse
description of an Americas social contract in 2014, creates a more general feeling of discomfort. Surely we would be reluctant to
accept that those who are less able to shoulder societal responsibilities- babies, the elderly, the infirm- are in some sense written
out of the social contract, thus losing the rights that come with it?
For those interested in ensuring greater protection for animals, is litigation based on the rights of humans really the right way
forward anyway? Just last week, in a landmark case, Sandra, a 29-year-old ape, won an appeal similar to Tommys before an
Argentinean court. The full judgment has yet to be released, but the notion of non-human person rights seems to have found
favour with the court and Sandra is being moved to a sanctuary in Brazil. Tommys application to the Court of Appeals has just been
lodged. Maybe the real battle, though, should be one of hearts and minds outside the courtroom, encouraging us to reflect on the
impact that our consumer habits and lifestyles, be it food, clothes, holidays, have on animals and their habitats. Steps have already
been made by legislatures to better protect animals, as seen in the UK, for example, by the Animal Welfare Act 2006.
Over a century ago, the father of Utilitarianism, Jeremy Bentham, scoffed at the notion of universal rights held by virtue of being
human. They were, he famously said, nonsense on stilts. Yet this very idea has become a dominant legal paradigm in the last
century. With increasing concern about the sustainability of our planet, its creatures and future inhabitants, should we be reluctant
to dismiss as nonsense something akin to human rights, with the weighty normative and legal claims they carry, being extended to
those not currently understood as legal persons?
Richard is an Editor of the Oxford Human Rights Hub Blog. He is completing his DPhil on human rights law and practice within the
police at the Law Facultys Centre for Criminology, University of Oxford.

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Chapter 3

Institutional Frameworks

Institutional Frameworks
Chapter 3

42

Introduction Max Harris

43

Addressing the Critical Funding Gap at the UN Human Rights Office

44

Why Should Anyone Care About The UN? The UN Forum 2014

45

The South African Public Protectors Remedial Powers: A Need for Clarity

46

Human Rights in the UK Media: Representation and Reality

47

The Handbook of Human Rights in Northern Ireland: Where Are We Now?

48

Building Institutions for the Long-Term: the Need for Normative Transparency

49

The Missing Human Rights Impact Assessment of European Union Free Trade Agreements

50

Third Conference of States Parties to the American Convention on Human Rights: Another Brick on
the Wall (or is it another brick off?)

51

The Challenges for Judicial Appointments in India

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The Mexican Human Rights Constitutional Amendment and Impunity: Victims in a Labyrinth

Institutional Frameworks
Chapter 3

Introduction
By Max Harris

Lawyers can be inattentive to the social and political context of law. In law, it is so often text that matters the words of judgments,
the phrasing in legislation and a focus on such text can lead to neglect of the background to that text, or ignorance of the
consequences of adopting a particular textual formulation. The posts collected in this chapter aim to redress that tendency in
the law to marginalize context. The posts address the subject of institutional frameworks: that is, the structures governing
organizations or positions that have a degree of permanence on the legal landscape. Analysis in these posts of institutional
frameworks helps to remind us of the importance of policy design and politics for human rights protection. And it reveals the value
of constantly reviewing institutions, to ensure that they advance the cause of human rights.
The posts in this chapter fall into two groupings. The first set draws attention to human rights institutions that serve noble purposes,
but require greater support of some form. Vincent Plotons forceful article (Addressing the Critical Funding Gap at the UN Human
Rights Office p 43) discusses the United Nations Office of the High Commissioner for Human Rights (OHCHR). He talks about
the important efforts being made to publicise the OCHCRs impact, but notes that weak outreach capacity and over-reliance on
lawyers within the OCHCR may be hindering these efforts. Ploton also urges the OHCHR to push for reform of the major UN
treaty bodies. Shanelle van der Bergs similarly cogent piece (The South African Public Protectors Remedial Powers: A Need for
Clarity p 45) examines the South African Public Protector, an institution set up by the South African Constitution akin to what is
known as an ombudsman in many jurisdictions. Van der Berg describes the Public Protector as critically important in tackling
maladministration and corruption, but raises concern about a recent judgment, Democratic Alliance v South African Broadcasting
Corporation. Both the judgment and the governments response to it threaten to weaken the Public Protectors constitutional
function, according to van der Berg. Natasha Holcroft-Emmesss summary of the 2014 United Nations Forum (Why Should
Anyone Care About The UN? The UN Forum 2014 p 44) raises similar issues to those discussed by Ploton, although HolcroftEmmess writes about the UN as a whole, as opposed to the OHCHR. She observes that there are good reasons to care about
global issues including the fact that there are transnational problems that require transnational solutions but that the UN Forum
indicated a lack of interest from the British public in foreign affairs or aid. Holcroft-Emmess also provides perceptive commentary
on what was said at the Forum about the universality of the UN, nuclear disarmament, the responsibility to protect doctrine, and
development. Michelle Farrells post (Human Rights in the UK Media: Representation and Reality p 46) reports from another
significant conference, a one-day seminar on human rights in the UK media at the University of Liverpool. Farrell highlights the
important role that the media plays as an institution in framing human rights issues. However, the conference suggested that the
media in the UK can be inaccurate and misleading on human rights issues, according to Farrell. The entire seminar, said Farrell,
showed the need for better public debate about human rights. Finally, within this grouping, Brice Dicksons post (The Handbook
of Human Rights in Northern Ireland: Where Are We Now? p 47) refers in a complimentary way to the Northern Irish NGO,
the Committee on the Administration of Justice, and its new 2015 handbook on human rights. Dickson points out that while the
handbook might need to be expanded in future, it provides a valuable resource which underscores success stories (such as the
polices compliance with human rights) as well as ongoing challenges (including social and economic rights, and discrimination).
Overall, the common theme in these articles is that certain human rights institutions have been established with important goals
but that we need to be vigilant to ensure that these institutions get the publicity and resourcing they deserve.
The second set of posts makes the case more radically for the reform of specific human rights-related institutions. Peter Lawrence
describes a conference at the Oxford Martin School (Building Institutions for the Long-Term: the Need for Normative Transparency
p 48) that suggested different ways in which institutions can be more oriented towards the long-term. The conference indicated that
there might be value in creating positions with a mandate to consider the interests of future generations. Lawrence argues that such
positions need to have some teeth if they are to be influential, but cannot be so powerful that they are never introduced. Giovanni
Gruni (The Missing Human Rights Impact Assessment of European Union Free Trade Agreements p 49) calls for significant
change in how human rights are considered in the context of free trade agreements. Human rights are regularly implicated in trade
issues, says Gruni, and human rights impact assessments (described by the United Nations Human Rights Council in a recent
report) could monitor the extent of violations. Ignacio de Casas (Third Conference of States Parties to the American Convention
on Human Rights: Another Brick on the Wall (or is it another brick off?) p 50) records efforts by Ecuador to reform the InterAmerican System for the Protection of Human Rights at a meeting of the States Parties in January 2014. De Casas says that while
Ecuador faced some resistance, the meeting was not a complete loss for Ecuador and showcased the countrys remarkable
perseverance. Arghya Sengupta (p 51) discusses new legislation on judicial appointments in India, a constitutional challenge to
one aspect of judicial appointments, and recent cases on appointment. Sengupta says that the Court has a responsibility to clarify
the contours of judicial independence and accountability, and argues that an upcoming case could well be a landmark reform in
this area. Ernesto Castillo-Sanchez (The Mexican Human Rights Constitutional Amendment and Impunity: Victims in a Labyrinth p
52) also looks at a constitutional amendment, this time in Mexico. He outlines the way that this amendment attempts to end forced
disappearances in Mexico, and relays the poignant story of a mother, Maria, who lost her son, Christian, in 2010. In all of these
posts, there is a message that human rights institutions are in a state of flux and that these institutions must be capable of being
reformed if they are to serve the needs of victims in the twenty-first century.
The posts in this chapter move from the local to the global, across courts and NGOs and educational institutions, and, ultimately,
communicate the importance of institutional context for the understanding of human rights law as a whole.

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Max Harris is an Examination Fellow at All Souls College, Oxford. He is an Associate Director of the Oxford Human Rights Hub, a
researcher for Free Speech Debate, and a member of the New Economy Organisers Network.

Addressing the Critical Funding Gap at the UN Human Rights Office


By Vincent Ploton | 6th December 2014

High Commissioner Zeid Al Hussein is right to point to the shockingly low proportion of the UN budget which is allocated to his
office. But he also needs to implement some major reforms to embrace a larger funding base.

The funding situation of the UN human rights office is at an all times low. The High Commissioner is right to bang on the UN table
on lack of resources. But there are also serious risks in overemphasizing the resource problem without proposing solutions. And
these are plentiful. Two of those that seem most critical to me are addressed below. This is by no means a comprehensive list, but
these 2 factors certainly make up for a good rationale of the current critical funding situation at the Office of the High Commissioner
for Human Rights (OHCHR).

Improve the global perception of the office

Extraordinary problems call for radical solutions. After 20 years of existence, what is the global perception index of the UN human
rights office? The OHCHR is still too often at best mistaken for the High Commissioner for Refugees. Over recent years, the office
has had limited exposure in the world media. The OHCHRs weak outreach capacity is incommensurate with its tangible ability to
deliver on the ground. Clearly, the overwhelming representation of lawyers and legal practitioners within the office and associated
bodies is hindering its capacity to reach out to people with simple and powerful messages. Of course, this is not just an OHCHRspecific problem. A 2013 survey revealed that only 22% of the young believe the UN is effective. Yet their opinion would probably
be very different if they could only see what the UN does for them. People need to feel and see the difference that the UN, and
particularly the OHCHR, is making for them.
The current acting Director of the UN in Geneva, Michael Moller, seems to have gotten that point. By putting forward slogans such
as #GenevaMeans or Geneva Impact and by insisting on the global impact of the UN, he is contributing to prove his affirmation
that Everything that is done in Geneva has a direct impact on every person on this planet, in any 24 hour period. Slogans of that
sort are certainly exaggerated, but they serve the purpose to demonstrate the relevance of the UN to the lives of ordinary people,
not some privileged elite in New York or Geneva.

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The need to reform treaty bodies

It was previously argued that the recent reform of treaty bodies lacked ambition. These UN human rights bodies have been
chronically under-resourced, or at least so they are claiming. The previous Chair of the Group of Chairs of treaty bodies, Claudio
Grossman, has repeatedly emphasized the lack of adequate financial resources allocated to his own institution, the Committee
against Torture, as well as other treaty bodies. And I am convinced that the more treaty bodies will continue to complain about the
lack of resources without proposing meaningful reforms, the more they will be facing a wall.
The chronical under-resourcing of treaty bodies calls for a major reshuffle of the system. Here again, the starting point is quite
simple: what is the proportion of rights holders or even victims aware of the treaty bodies around the world? Clearly not enough.
But more serious than that is our incapacity to come up with clear evidence, data and figures on the level of implementation of the
recommendations formulated by these bodies.
I am certainly not suggesting to get rid of the ten main international human rights treaties and the many excellent recommendations
that stem out of the treaty body system to improve the protection of human rights. But the multiplication of TBs, the emergence of
new powerful mechanisms such as the Universal Periodic Review, and the increasing number of States parties to these treaties
globally, calls for a radical shift.
In just three months in office, Zeid Al Hussein has demonstrated his capacity to speak his mind, and a determination to put up
a good fight for the cause. These early signs of charisma will be multiplied by an ability to propose meaningful solutions to the
underlying issues behind the Offices current major funding problems.
Vincent Ploton has been working in different humanitarian and human rights organisations for the past ten years. He is currently the
Head of External Relations at the Centre for Civil and Political Rights.

Why Should Anyone Care About The UN? The UN Forum 2014
By Natasha Holcroft-Emmess | 15th July 2014

The UN Forum 2014, orchestrated by the United Nations Association-UK on 28 June 2014, was the largest public event on the
United Nations in recent decades. UN representatives explained to the public how the international organisation attempts to grapple
with the most formidable challenges of our time.

The first debate asked: why should anyone care about the UN? Empirical data provided by YouGov has recently indicated that the
UK public is not engaged with foreign affairs: many considered foreign aid ineffective or a luxury that we simply cannot afford. A
lack of efficient communication about the benefits of the UNs work added to this general indifference.
But why should we care? Heres one reason: global problems affect everyone locally to some extent. Floods on the other side of
the world mean crops fail, and the price of everything goes up. People flee oppression in their own state and immigration rises
elsewhere. People are too busy lamenting the symptoms and forget to look at the cause. These are transnational issues, requiring
a transnational response.

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Another trend revealed that the general public believes UK spending on foreign aid is too great, especially during a period of
austerity. Many thought we spend too much, but few knew the statistics. The UK recently hit the Millennium Development Goal
of spending 0.7% of the Gross National Income on foreign aid. But this achievement was kept quiet, lest it fuel the anger of
introspective backbench politicians. We need to stop thinking about international aid as a luxury or a moral choice, but as a legal
duty on wealthy countries and a good investment in the worlds future.
The puzzle of human rights universality was also briefly addressed. Some consider the UNs global goals to be unattainable in the
face of such diversity in norms and customs around the world. The argument that human rights standards do and ought to differ
geographically, however tempting and easy it would be to accept, should not be our approach. The value which the UN brings
to the problem of achieving universality is the collective global weight which it can lend to address a particular problem. Take a
few examples: child marriage, child soldiers, forced labour the UN is uniquely placed to set minimum international standards of
human rights.
The three other debates varied in focus. One asked whether nuclear weapons keep us safe, or whether the catastrophic
consequences of detonation around the world justify nuclear disarmament. There is no doubt that these weapons have the
potential to decimate the planet. But the only real hope for disarmament is for the most powerful countries to disband their nuclear
weapons programmes. Another debate asked whether the responsibility to protect (R2P) is an appropriate means of response to
humanitarian crises. All international uses of force, even those for ostensibly humanitarian purposes, must be viewed with deep
suspicion and only ever justified in circumstances of the utmost necessity. The value of the R2P is that it is narrowly constructed
and ought to remain so. It is submitted that the Permanent Members (P5) power of veto is also nowadays difficult to justify, and the
P5 ought to reserve its application to the most fundamental questions of military intervention.
The final debate asked whether our approach to development is flawed. The majority of those present believed that the goal
of addressing global poverty ought to be granted the highest priority. It must be borne in mind that by our inaction we condemn
millions of people around the world to malnutrition, disease and death. We can remedy these dire straits by supporting the work
of the UN and its associates, the World Heath Organisation and UNICEF. They provide famine relief, refugee aid and respond to
health epidemics, most recently the Ebola virus outbreak in Africa. We are the first generation which could see an end to global
poverty. It is a choice we make to allow it to continue, and that fact is difficult to live with. It may not feel like the UN has an impact
on your daily life, but it certainly has a part to play in your future, and the future of our planet. Let us reconsider our localised way of
thinking and unite again in the common cause of enhancing conditions for all within our international community.
Natasha Holcroft-Emmess is a London-based solicitor. She completed the BCL with distinction and is a frequent contributor to the
Oxford Human Rights Hub Blog.

The South African Public Protectors Remedial Powers: A Need for Clarity
By Shanelle van der Berg | 14th November 2014

The South African Public Protector is a critically important constitutional institution. The Public Protector is tasked, along with other
Chapter Nine institutions, with strengthening constitutional democracy in South Africa. Indeed, the Supreme Court of Appeal has
recognised that the Public Protector often constitutes a last defence against maladministration and corruption. Where irregular
spending, corruption or maladministration is permitted to continue unchecked, such public conduct holds obvious implications for
the realisation of the human rights enshrined in the South African Constitutions Bill of Rights. For example, where the President
spends R246 million on purported security upgrades to his private residence, and the Public Protector confirms such expenditure
to be a misappropriation of public funds, the question immediately arises as to whether such funds could have been better spent
on realising resource-intensive rights such as the right of access to adequate housing, access to sufficient food and water or basic
education.
The status of the remedial powers of the Public Protector is thus of crucial importance. If government is free to disregard the Public
Protectors findings and persist in irregular or even downright corrupt conduct, the ability of the Public Protector to safeguard
constitutional democracy and facilitate the realisation of the rights on which our democracy is built, becomes severely hampered.
The governments response to a recent Western Cape High Court judgment holding that the Public Protectors findings are not
binding or enforceable, is therefore particularly worrisome. In the recent case of Democratic Alliance v South African Broadcasting
Corporation Case No. 12497/2014, the High Court held that the institution of the Public Protector differs from that of a court of law
in that unlike a court order, a finding by the Public Protector is not binding on persons or organs of State. The Court hastened to
add that were government to simply ignore the findings of the Public Protector, it would flout the constitutional imperative enshrined
in section 181(3) of the Constitution, which directs that other organs of state, through legislative and other measures, must assist
and protect [Chapter Nine] institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
Relying on English law pertaining to the remedial powers of an ombudsman, the Court held that an organ of State which chooses
to reject the Public Protectors remedial directions must have cogent reasons for doing so. The Court clarified that the process by
which such decision is reached, as well as the decision not to accept the Public Protectors remedial directions, must be rational.

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Significantly, the Court pointed out that a decision to reject the Public Protectors remedial directions is itself capable of being
subjected to judicial review.
The parliamentary committee (now consisting solely of ANC party members) established to investigate President Zumas upgrades
to his residence in Nkandla was quick to use the judgment for justifying its decision to absolve the President from any wrong-doing,
despite the Public Protectors explicit findings to the contrary. Given the Public Protectors comprehensive report on the matter, the
rationality of the committees decision is dubious. Meanwhile, the Public Protector intends to take the judgment on review, citing the
Courts over-reliance on the powers of an ombudsman in the UK as one reason for disagreeing with the courts judgment. Whatever
the outcome of the review proceedings may be, there is an urgent need to clarify the remedial powers of the Public Protector in a
manner which will promote the effectiveness of this crucial democratic institution. Governments continued refusal to respond to
the Public Protectors findings, or to support the role that the institution plays, has the potential to imperil the foundations on which
South Africas constitutional democracy is based.
Shanelle van der Berg is a member of the Socio-economic Rights and Administrative Justice Research Project at Stellenbosch
University, Faculty of Law. She is also the OxHRH Blogs Regional Correspondent for South Africa.

Human Rights in the UK Media: Representation and Reality


By Michelle Farrell | 16th October 2014

On 19 September 2014, the Human Rights and International Law Unit of the School of Law and Social Justice at the University of
Liverpool hosted a one day seminar part funded by the Modern Law Review exploring the representation of human rights in the
media in the UK.
The seminar brought together constitutional and international law scholars, media and communications scholars, journalists,
legal practitioners and civil society actors for what became an informative, often provocative, frequently entertaining and certainly
challenging discussion.
Beyond developing the debate and exchanging knowledge, the seminar was envisaged as an opportunity to think about the gap
between European and UK legal and political institutions and human rights as experienced by communities and individuals. The
media which arguably bridges this gap, playing no small part in both denigrating human rights and in uncritically celebrating human
rights, seemed an intuitive starting point for getting to grips with public perceptions of human rights.
This seminar was certainly timely. With the Conservatives plans for the Human Rights Act and the European Court now unveiled,
the scene is set for much legal wrangling and political contestation over the future of human rights in the UK. The media will play a
significant part in displaying, portraying and developing these discussions.
Reporting on rights
David Mead, Professor of UK Human Rights Law at the University of East Anglia, delivered the keynote speech. Asking the
enticing question, do we learn more about the media than about human rights from tabloid coverage of human rights?, Mead set
the ball rolling on the theme of print media (particularly, Daily Mail) misrepresentation of human rights cases and issues. Drawing
on empirical data and media theory, Mead provoked us to think about the language and techniques of inaccurate and misleading
reporting. This line of inquiry was also taken up by Adam Wagner, editor of the UK Human Rights Blog. Wagner encouraged us to

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consider the political backdrop to this media reporting and to take into account, in trying to understand why the media [is] doing
such a bad job, both the practical realities and challenges of contemporary media and the ideological tenor of media outlets.
Drawing on similar themes, Owen Bowcott, legal affairs correspondent at the Guardian, and Susana Sampaio Dias, a media and
journalism specialist at University of Portsmouth, imbued the discussion with the strong sense that, in order to understand media
representation, we do need to understand the constraints and challenges of media reporting.
Public perception of rights
Rights are assumedly codified in the interest of individuals. Yet there is a chasm in the relationship between the rights-enforcing
institutions the Strasbourg Court, for example and the particular localities, communities or individuals that rights allegedly
safeguard or empower. Do human rights make a difference in the UK? Are human rights viewed as relevant by individuals at the
local level? What is public opinion and what influences this opinion? These questions were taken up by a number of the speakers;
in particular, Nicky Hawkins, Communications Director at Equally Ours spoke of her organisations work to disseminate positive
messages about rights.
Scepticism about rights
It became an underlying theme of the seminar that the contest over the HRA and the European Court this media war masks
a deeper unease and uncertainty about rights. A number of speakers (Colm O Cinneide and Mike Gordon in particular) raised
the issue of a marked failure to really engage with rights scepticism. As O Cinneide suggested, supporters of rights fail to fully
engage or challenge the arguments put forward by critics, some of which arguably have merit. Gordons presentation provoked
the collectives thinking on whether the pervasiveness of rights-talk in the media and beyond has quashed alternative avenues for
apprehension, leaving, for example, little room for democratic scepticism of rights. These are key themes that ought to dominate
the upcoming and now inevitable debates. A rich political discussion about the factual impact and desirability of human rights in the
UK is needed.
To be continued
With the battle over rights already in full swing, it seems that an informed political debate about the effects, the utility and the
benefits, if any, of rights is needed. However, the debate on the future of UK human rights law seems to be largely cornered in
the academic, political and judicial institutions. What does get through is mediated in a press that, in some sections, is entirely
disdainful or misrepresentative of rights and, in other sections, is often celebratory and rarely critical of rights. This seminar was
productive in opening up new ways of talking and thinking about rights, and how the media understands and portrays them, beyond
the good or pro rights v bad or anti rights stalemate.
Dr Michelle Farrell is a lecturer in law in the School of Law and Social Justice at the University of Liverpool.

The Handbook of Human Rights in Northern Ireland: Where Are We Now?


By Brice Dickson | 27th January 2015

Northern Irelands most prominent human rights NGO is the Committee on the Administration of Justice. Founded in 1981, it has
played a significant role in ensuring that human rights and equality are central to the way forward in Northern Ireland. One of the
techniques it has used to do that is providing basic information about relevant laws. This manifested itself most significantly in the
publication of a Handbook in 1990, the foreword to which was written by Lord Scarman. Three more editions followed in 1993,
1997 and 2003. Now, in 2015, a new version of the book has been produced, entitled Human Rights in Northern Ireland: The CAJ
Handbook, published by Hart and with a foreword by Lord Lester of Herne Hill QC.
I have been privileged to edit or co-edit every incarnation of this book during the last 25 years. Reflecting on the latest version two
points strike me. First, the book is as much about social and economic rights as it is about civil and political rights. This is because
issues such as education, employment, mental health, housing, social security and the environment impinge much more on most
peoples lives than do police powers, prisoners rights, free speech or freedom of association. Even in Northern Ireland, where
disputes over flags, parades, inquests and prosecutions still hit the headlines, more bread-and-butter issues are what cause people
real personal concern.
The second reality is that discrimination is just as big a worry as it has traditionally been in Northern Ireland. But the focus of
that worry has shifted. While there is still far too much discrimination based on religious belief, there has been a huge rise in
discrimination based on race, sexual orientation and age. Womens rights are still under-protected too, not least in the realm of
reproduction. The new CAJ Handbook therefore devotes six of its 26 chapters to the law relating to equality and discrimination.
Having once led the pack in these fields, Northern Ireland now lags behind other parts of the United Kingdom as well as the other
part of Ireland. The Equality Act 2010 has no application outside England, Wales and Scotland.
There are good news stories in Northern Ireland too. The police service is one of the most human rights compliant in these islands,
or anywhere in Europe, partly because of the completely independent Office of the Police Ombudsman (which investigates

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complaints), the Criminal Justice Inspectorate (which examines police efficiency in the same way as it looks at every other
agency within the criminal justice system) and the Policing Board (which ensures police accountability). A glance at the Policing
Boards annual human rights reports, the latest of which is to be released on 20 February, demonstrates just how thorough that
accountability has been.
The Stormont House Agreement, reached by local politicians and the British and Irish governments just before Christmas, has
the potential to ensure that problems associated with dealing with the past (in particular the hundreds of unresolved killings which
occurred during the Troubles between 1968 and 1998), the disputes over flags and marches, and the need for more integrated
schooling and housing, are once and for all put to bed. A set of new quangos is to be established and more money is to be made
available. Perhaps most importantly, a timetable has been set, against which progress is to be monitored.
Mercifully the threat from dissident republicans, while still significant, seems to be being managed quite successfully. There are still
emergency powers, including juryless courts, but the safeguards in place are greater than ever before. The recent annual review of
some of the emergency powers by David Seymour strikes a more optimistic note than of late.
Going forward, the rights issues that matter most to people in Northern Ireland are likely to be those relating to surveillance, welfare
and living standards. The new CAJ Handbook will no doubt be widely consulted in those areas. Its 650 pages may need to be
expanded even further in a few years time.
Brice Dickson is Professor of International and Comparative Law at Queens University Belfast, a former Chair of the CAJ and a
former Chief Commissioner of the Northern Ireland Human Rights Commission

Building Institutions for the Long-Term: the Need for Normative Transparency
By Peter Lawrence | 5th December 2014

The Oxford Martin Programme on human rights for future generations brought together politicians, philosophers, and NGOs in its
conference on How can institutional mechanism safeguard for tomorrow, today? on 21 October 2014. The following comprises
some impressions from a participant in this conference.

Simon Caney emphasised that the drivers of short-term policy -making were varied, with some incentive structures easier to
modify than others. He proposed three criteria for evaluating institutional proposals aimed at promoting long-term policy-making:
effectiveness, political feasibility and moral legitimacy. He then explored some specific institutional proposals, some of which

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included mainstreaming of long-term thinking, for example, through the incorporation of long-term thinking into audit systems.
Such systems have the advantage of being less vulnerable to political whims.
Other participants at the conference addressed specific institutional reforms:

Juliana Bidadanure explored whether the introduction of youth quotas into parliaments would increase the likelihood of meeting
the demands of intergenerational justice. She noted that while there is mixed evidence in terms of whether young people are
more or less inclined to care about the future than older persons, there are nevertheless instrumental reasons for supporting
youth quotas in Parliament.
Joerg Tremmel argued that the time had come for a new type of Constitution involving a fourth branch which represented the
interests of future generations. He was cautious about such a branch having an overly prescriptive role owing to disputes about
what policy best represents future generations interests.
Peter Davies, Wales Commissioner for Sustainable Futures introduced a practitioners perspective drawing on his heavy
involvement in current processes to reform Welsh lawmaking including new reporting requirements that would require political
parties in the lead up to elections to have their policies tested in terms of long-term impacts.
Oresk Tynkkynen the youngest ever member of the Finnish Parliament shared insights into the workings of the Finnish
Parliamentary Committee for the Future over its 25 year life. While the Committee lacks teeth in terms of its capacity to
override legislative proposals, Tynkkynen emphasised the educative role that it played in relation to policy makers. This
includes its role as an incubator for future prime ministers, given that over the last 25 years all Finnish PMs had spent some
time working for the committee.
Peter Lawrence argued that democratic legitimacy criteria should be used for evaluating international proposals for factoring
in the interests of future generations, including a UN Commissioner for future generations. He argued that, in spite of the
fractured nature of international society, the demos (public) could be extended into the future by relying on an interest-based
notion of representation.
Catherine Pearce from the World Future Council gave a convincing argument as to why a UN Commissioner for future
generations was required. She emphasised the role of moral leadership that would be entailed in such a position. Her
presentation stimulated an interesting debate into the question of strategy, in terms of how best to shake citizens out of
complacency to take an interest in future generations. During the debate it was suggested that innovative communication
methods could help bring alive the rather abstract questions of future generations.

I came away from this Conference more convinced than ever of the need to make explicit the normative underpinnings behind
institutional proposals which factor-in future generations interests. Being clear about such normative underpinnings can help
in building political support for reforms. Mainstreaming- style institutional reform (such as accounting methods) can only be a
positive.
Introducing new institutions with a specific mandate to represent the interests of future generations is justified given the tendency
for their interests to be marginalised. Such mechanisms, however, face a dilemma. If they lack teeth, they may have less direct
effect, but be more inclined to survive changes in political fortunes. If they have teeth, they may run the risk of never being
introduced. The workshop provided an excellent example of the value of interdisciplinary research and debate around a vital
contemporary issue.
Dr Peter Lawrence is a Senior Lecturer at the Faculty of Law, Tasmania, and author of Justice for Future Generations, Climate
Change and International Law (Edward Elgar 2014).

The Missing Human Rights Impact Assessment of European Union Free Trade Agreements
By Giovanni Gruni | 21st August 2014

The European Union is pursuing a proactive policy to conclude free trade agreements with numerous countries around the world.
The policy includes major trade partners of the EU such as the United States and Canada as well as emerging economies and
developing countries in the Caribbean and sub-Saharan Africa.
These free trade agreements regulate many areas which can interfere with the free movement of goods and services between the
countries involved. Notably, the new generation of free trade agreements does not only include limits on the use of trade barriers
such as tariffs but also extensive regulation of non-tariff barriers: legislation or other red tape that can hinder international trade
between countries. Accordingly, the agreements which the European Union is negotiating include subjects such as trade in goods
and services, intellectual property rights, investment protection, sanitary and phytosanitary measures, agriculture, subsidies and
public procurement.
Over the last two decades research has demonstrated a correlation between some of these trade-related norms included in free
trade agreements and the realisation of human rights. For instance, the inclusion of intellectual property rights in a free trade

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agreement can interact with the right to health by influencing access to medicine. Supranational protection of intellectual property
and norms on tariffs, export restrictions, subsidies and sanitary and phytosanitary measures are also relevant to the right to
adequate food. The right to health is then called into question when a free trade agreement attempts to liberalise health care
services, especially when the countries involved have a public system of health care such as the UKs NHS. In addition, certain
agreements might include a clause allowing private companies to sue States in order to protect their investments, an instrument
which also has human rights implications. This is the case of the trade deals between the EU and the US and the EU and Canada.
For these reasons the conclusion of a free trade agreement requires a careful assessment of its impact on human rights, and
the United Nations Human Rights Council recently published a Report on how such assessment might be carried out. Other
guidelines on this human rights impact assessment have been developed by scholars and international organisations. However,
in European Union law, the procedure to negotiate and conclude free trade agreements does not require a human rights impact
assessment at any stage. Since external trade is now an exclusive competence of the European Union, negotiations are carried
out mainly by the European Commission, the Council of Ministers and the European Parliament, which provides its consensus
at the end of the process. In this procedure, the relationship between the free trade agreement and human rights law lacks an
institutionalized method of assessment highlighting the trade clauses relevant to the realisation of fundamental rights. In particular,
within the European Commission negotiations are mainly carried out by the Directorate General for trade: the Directorate Generals
specialising in human rights and development cooperation have no role, or a marginal one, in the process.
A human rights assessment of free trade agreements would provide several benefits. First, it would clarify areas of negotiation
which are particularly sensitive for human rights, so that negotiators can take them into account. Second, since the free trade
agreements would be binding and enforceable, the assessment would avoid later potential conflicts between international trade law
and human rights. This is particularly important since the ex post dispute settlement mechanisms enforcing free trade agreements
only take trade law, and not human rights law, into account. Third, the assessment could provide an institutional mechanism for
the Directorate Generals of the Commission specialising in human rights law to contribute to the negotiation of the free trade
agreement. The process would become more coherent, and allow the European Commission to develop valuable know-how on the
interactions between international trade law and human rights. Finally, the assessment could be the occasion for obliging human
rights groups and civil society to express their opinions in a structured and legal manner, identifying exactly the trade clauses that
might be problematic for human rights protection.
Overall, a human rights assessment of free trade agreements has the potential to be beneficial to the negotiation process, bridging
the gap between international human rights law and international trade law. At the same time, the assessment would increase the
legitimacy of the free trade agreement smoothing the ratification process and reducing the oppositions to the trade deal present in
civil society.
Giovanni Gruni is a DPhil candidate at Faculty of Law of the University of Oxford and a participant in the Oxford Martin Program on
the Future of Food. Since 2013 he is also Academic Assistant at the Department of Legal Studies of the College of Europe.

Third Conference of States Parties to the American Convention on Human Rights: Another
Brick on the Wall (or is it another brick off?)
By Ignacio de Casas | 12th February 2014

On January 21st and 22nd 2014, the Third Conference of States Parties to the American Convention on Human Rights (ACHR)
took place in Montevideo, Uruguay. Once again, Ecuador was working behind the scenes, pushing for reforms that it was unable to
achieve months before through the Process of Strengthening of the Inter-American System for the Protection of Human Rights.
Days before the conference started, it was announced through the press that the meeting was going to decide a change of location
for the Inter-American Commission on Human Rights (IACHR) headquarters (now located in Washington, DC). Chancellor Patio,
from Ecuador, travelled to several countries throughout Latin America to lobby this issue. And he arrived in Montevideo with a true
task force ready to push this and other topics at the conference. Here are the outcomes.
Ecuadors first agenda point, changing the seat of the IACHR, is an objective for which the government of President Correa has
long battled. Its rationale is that that the United States has an undue influence upon the organ due to its location, and since the
United States is not a State Party to the Convention, this influence is completely out of order. But once again, as has happened in
the previous conferences as well as within the Organization of American States (OAS), no consensus was reached on this issue.
During the second day of discussions in Montevideo, Ecuador moved forward with another issue: the reform of the IACHRs
Rapporteur system. Although Ecuador has an important point here, there are many countriesas well as members of civil society
that suspect that Ecuador is lobbying this issue because of its declared war with the Special Rapporteur on Freedom of Expression.
The issue was hotly contested, with Costa Rica leading the opposition to Ecuadors position. Proposals varied from eliminating
the existing rapporteurships, to balancing the economic resources of the different rapporteurs, to raising the budget of the poorer
rapporteurships while leaving the budget of the richer ones unchanged. It was eventually decided that a working group of States

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would be created to assess the issue and provide a proposal.

Finally, Ecuador tried to push one last issue: to institutionalize the Conference of States Parties to the ACHR. The countries of
ALBA, led by Ecuador, have been trying to bring about major reforms to the Inter-American System on Human Rights. But most of
them, being radical, had no support from OAS members. Consequently, Ecuador started this new forum, the Conference of States
Parties to the ACHR, as a way to discuss the issues without the presence of outside voices, such as Canada or the United States
(neither of whom has ratified the ACHR). By proposing a draft set of rules of procedure for the conference, Ecuador attempted to
give some institutionality to this still informal meeting of States. Yet again, many countries opposed Ecuadors position.
All in all, it was not a complete loss for Ecuador; the final Declaration of Montevideo also demonstrates what it accomplished. First,
Ecuador managed to convene this third edition of the conference without the uncomfortable presence of the United States and
Canada. Moreover, neither the IACHR nor civil society were invited. This shows that Ecuador was able to exclude almost every
potential opponent to its proposals. Second, it also managed to schedule a fourth edition of the conference, which will take place in
Haiti before the next OAS General Assembly.
Furthermore, although neither the IACHRs headquarters nor the rapporteurships have been changed as of yet, the process is
still open. And, as the Ambassador of Costa Rica stated, these goals will probably be achieved by Ecuador due to its remarkable
perseverance.
Ignacio de Casas is a lawyer specializing in international human rights litigation. He frequently handles cases involving the InterAmerican and United Nations systems of human rights protection. He is also the OxHRH Blogs Regional Correspondent for Latin
America.

The Challenges for Judicial Appointments in India


By Arghya Sengupta | 19th February 2015

In India, several significant developments have taken place in the last two months on how judges to the Supreme Court and High
Courts will be appointed.
On 31st December 2014, the President assented to the 99th Constitution Amendment Act, 2014 and the National Judicial
Appointments Commission Act, 2014. Taken together, these two pieces of legislation have established the National Judicial
Appointments Commission (NJAC), which is vested with the power to appoint judges to the Supreme Court of India and the High
Courts. The NJAC is comprised of the Chief Justice of India, two senior-most Justices of the Supreme Court, the Minister for Law

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and Justice, Government of India and two eminent persons selected by the Chief Justice of India, Prime Minister and Leader of
Opposition in the Lok Sabha (Lower House of Parliament). Given that the sanctioned size of the judiciary in the Supreme Court
of India is 31, including the Chief Justice of India, and over 900 that in the High Courts, the NJAC has considerable responsibility.
Further, the NJAC, replaces the judicial collegium, a group of senior judges hitherto centrally responsible for all appointments,
making its establishment politically controversial and raising issues of judicial independence and autonomy.
In fact, the new mechanism for appointments is not in force yet, despite the constitutional amendment having received presidential
assent, owing to a constitutional challenge to its validity in the Supreme Court. In Supreme Court Advocates-on-Record Association
v. Union of India Writ. Petition Nos. 1303 of 1987, filed in January 2015 before the Supreme Court, the petitioners have contended
that the amendment violates the independence of the judiciary, which is part of the basic structure of the Constitution. The fact
that the Chief Justice of India will no longer have primacy in appointments (as he does currently) is the key basis for such a claim.
Moreover, the NJAC Act, 2014 has also been challenged on technical and substantive grounds. Technically, it has been contended
that the Act is non-est because it was passed before the constitution amendment on which its validity depends, was passed.
Substantively, it is claimed that the introduction of a super-majority (all decisions to be taken by five positive votes) denudes the
primacy of the judiciary; at the same time, the non-specification of criteria for appointment suffers from the vice of excessive
delegation. No date has been set for the hearing of the matter yet.
The filing of this constitutional challenge continues a trend of Judges Cases, seminal litigation in the Supreme Court on how judges
of the higher judiciary are to be appointed. Whereas in the First Judges Case AIR 1982 SC 149, the Court had underlined the
executive governments power to appoint judges, it was reversed in the Second Judges Case Writ Petition (civil) 1303 of 1987
on the ground that executive appointment affects the independence of the judiciary. This led to the establishment of a judicial
collegium, a group of senior most justices of the Supreme Court, without whose concurrence no appointment could be made. This
was clarified in the Third Judges Case AIR 1999 SC 1 which provided details of the procedure and practice pertaining to collegium
appointments. For the last two decades when collegium appointments have been operational, the judiciary has been riddled with
allegations of nepotism and cronyism in appointments. Further the system is entirely opaque with no transparency in decisionmaking and no scope of holding the collegium accountable. While the raison detre of the collegium, protecting the judiciary from
unwarranted executive interference, was served, several newer problems emerged, which, on balance, made the remedy arguably
worse than, or as debilitating as, the disease. That it needed change is a platitude.
The ball is now firmly in the court of the Supreme Court. The case provides an ideal opportunity for the Court to clarify the contours
of judicial independence and accountability, neither of which have been explicated sufficiently. At the same time, the court is placed
in the awkward position of having to adjudicate on the extent of its own power of appointment. It is too early to tell how the case will
play out; however, it can be said with some certainty that whichever way the decision unfolds, it will be a landmark in Indian judicial
history.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy, a New Delhi based legal policy think-tank. The author is
grateful to Shubham Jain for his research assistance.

The Mexican Human Rights Constitutional Amendment and Impunity: Victims in a Labyrinth
By Ethel Nataly Castellanos-Morales and Camilo Ernesto Castillo-Snchez | 26th July 2014

The human rights situation in Mexico has suffered a notorious deterioration in the past few years due to multiple factors (such
as the weakness of the rule of law, the rise of organized crime, and high rates of petty crime). At the same time, Mexico has
tried to modernize its constitutional system to protect human rights, in a similar way to other countries in Latin America. The
most significant recent changes in Mexico are the Reforma constitucional en materia de derechos humanos (Human Rights
Constitutional Amendment) and the new Amparo law (the writ of constitutional protection, and the most important procedure for
protecting rights in the country).
These mechanisms have opened many possibilities for the protection of human rights but also entail many challenges, one of
which is the fight against impunity with respect to serious violations of human rights. Individuals whose rights have been violated
must confront a complex web of procedures and institutions which appear designed to favor impunity.
This is the case with forced disappearances. Maria Eugenia Padilla Garca, a Mexican woman, lost her son Christian who was
illegally arrested by the Polica intermunicipal (Inter Municipal Police) in 2010. Maria began the search for her son immediately,
knowing that his detention was groundless. Her son was never brought before a court, and Maria herself has had to surmount
many obstacles.
The first obstacle was the attitude of local authorities. They tried to persuade her to abandon the search: in their words, she was
risking both her and her sons life as the people involved in the disappearance were more powerful than the Mexican Government.
This persuasion, or arguably intimidation, increased Marias feelings of frustration and defenselessness. Additionally, the majority

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of government officials who did engage with Maria showed disrespect for her and her situation. In some cases they did not use the
expression forced disappearance, preferring the expression levantn (a kidnapping associated with criminal activity). The use of
this euphemism masks both the seriousness of the crime and the governments accountability.
Maria has attempted to challenge the governments inefficiency at various levels: before the local and the federal authorities;
before the judiciary and the executive; before the Polica Municipal (municipal police) and even the President of Mexicos office.
Nevertheless, Maria has not found her son or justice for the perpetrators, even though some of them have been fully identified.
Maria is navigating a complex labyrinth; she has learned from bitter experience and has now suffered her sons absence for four
years. She has witnessed the authorities lack of interest, and their incompetence. Despite of these obstacles, Maria is still fighting
to find Christian. This is her main goal; she still hopes to learn what happened, to find those responsible and to have the state judge
and condemn them.
Have the Mexican Human Rights Constitutional Amendment and the new Amparo law brought changes in the human rights
situation in this country? Marias case proves that to fulfill the Reforma and change the situation of human rights in Mexico, the
government must consider that like Maria hundreds of people are trapped in this labyrinth, surrounded and attacked by an
enormous and useless bureaucracy which only serves to turn the families of those who have disappeared into further victims.
Could the Reforma and the new Amparo Law solve those problems? How? It is now the Mexican Governments turn to speak.
Ethel Nataly Castellanos-Morales is a Ph. D. Candidate at the Instituto de Investigaciones Jurdicas-UNAM, Mxico.
Camilo Ernesto Castillo-Snchez is a Ph. D. Candidate at the Universidad del Rosario, Bogot-Colombia.

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Chapter 4

Criminal Justice

Criminal Justice
Chapter 4

56

Introduction Richard Martin

58

Reporting Restrictions in Criminal Cases Involving Juveniles

59

Righting Wrongful Convictions: Is Anguish Enough?

60

Equal Treatment for All Except the Highest?


Policing

61

The Duty of National Authorities to Investigate Allegations of Torture

62

A Guide to the Perpetuation of Human Rights Violations: Police Violence and Impunity in Brazil

63

Impunity for Police Violence: Nine Years Since Jhonny Silva-Arangurens Death
Assisted Dying

65

Prosecuting in the Public Interest: CPS Guidelines from Assisted Suicide to Social Media

66

Moral Arguments on the Right to Die: Should Courts Intervene?

67

Canadian Constitutional Challenge to Prohibition on Assisted-Dying

68

Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

69

Implementation of Carter will be the Ultimate Gauge of Success of the Decision


Death Penalty

71

A New Opportunity for the UN to Move Forward the Global Abolition of Death Penalty

72

Capital Punishment in China: Room for Cautious Optimism?

73

Indian Supreme Court Changes Stance on Death Penalty: Holds Delay to be a Ground for
Commutation

74

Meriam Ibrahim Saved from 100 Lashes and the Death Penalty

75

Federal Judge Strikes Down California Death Penalty as Unconstitutional

77

Glossip v. Gross: SCOTUS to Consider Oklahomas Lethal Injection Protocol

78

Executing the Intellectually Disabled: A Stronger Prohibition


Whole Life Sentences

79

Hutchinson v UK A Change in Direction on Whole Life Orders?

80

Whole Life Sentences in Hutchinson v UK Compromise or Concession?

81

Throwing Away The Key Whole Life Sentences in the Court of Appeal

82

Court of Appeal Affirms Ability to Pass Whole Life Tariffs for Murder

83

Perpetual Life Sentences, Reformation and the Indian Supreme Court


Prisoners Rights

84

Women in Prison: The Particular Importance of Contact With the Outside World

85

Prisoner Rights at the Forefront of Canadian Debates

86

Restricting Receipt of Rehabilitative Resources: The Prisoner Book Ban

Criminal Justice
Chapter 4

Introduction

By Richard Martin
Subject to the prevailing winds of politics, public sentiment and evidence-based policy, the notion of criminal justice was famously
said by Herbert Packer (1968) to be found somewhere on the conceptual continuum between due process and crime control. In
a climate of penal punitiveness - the decline in rehabilitative ideals, rising prison rates, harsher prison conditions, cuts to legal
aid which extends from the UK and USA to parts of Europe and Australasia, the criminal process may be seen drifting closer to
crime control ideals. What role has human rights law played in responding to such punitive trends? Where has it, or could it have,
protected of the rights of victims, defendants and offenders? Indeed, how have human rights fared in other penal climates across
the globe? Answers to these questions can be found in this eclectic and engaging collection of posts from the last year.
Linking many of the posts is the tension states face in their simultaneous desire to heavily punish the most serious of offenders
while fulfilling their domestic and international human/civil rights obligations. Contributors to this chapter demonstrate how rightsbased challenges in the courtroom have continued to loosen the grip of those states that cling on to the death penalty. Writing in
the context of the USA, Carol Steiker (Federal Judge Strikes Down California Death Penalty as Unconstitutional p 75) describes
how the judgment in Jones v Chappell, which scrutinized the California death penalty system, adds a new critique to the growing
chorus of consternation. Similarly, Jon Yorke (Executing the Intellectually Disabled: A Stronger Prohibition p 78) commends
the US Supreme Courts rejection of the appeal courts decision that would have seen Florida execute those of the most limited
intellectual capacity. Yorke draws particular attention to the Courts implicit recognition of international rights discourse when it
emphasised that death penalty is a violation of human dignity. The significance of this international discourse is captured in posts by
Roger Hood and Carolyn Hoyle (Capital Punishment in China: Room for Cautious Optimism? p 72), suggesting cautious optimism
for Chinas path towards abolitionism, and by Vincent Ploton (A New Opportunity for the UN to Move Forward the Global Abolition
of Death Penalty p 71), outlining the importance of the UN Human Rights Committee and the challenge it faces in encouraging the
ratification of the ICCPR second Optional Protocol. The centrality of the judiciary and rights-based appeals in retentionist countries
remains clear though when reading the posts by Gautam Bhatia on India (Indian Supreme Court Changes Stance on Death
Penalty: Holds Delay to be a Ground for Commutation p 73) and Jon Yorke on Sudan (Meriam Ibrahim Saved from 100 Lashes
and the Death Penalty p 74).
Another key exchange between human rights law and punitive sentences over the last year has been the compatibility of whole
life sentences with the right to freedom from inhuman and degrading treatment. The judicial dialogue the issue has generated
between the European Court of Human Rights (ECtHR) and the Court of Appeal of England and Wales is critically outlined in a
series of authoritative posts by Neil Shah (Hutchinson v UK A Change in Direction on Whole Life Orders? p 79; Court of Appeal
Affirms Ability to Pass Whole Life Tariffs for Murder p 82) and Natasha Holcroft-Emmess (Whole Life Sentences in Hutchinson
v UK Compromise or Concession? p 80; Throwing Away The Key Whole Life Sentences in the Court of Appeal p x81. The
contributors explain how this dialogue is set against an important sub-plot concerning the UKs increasingly contentious relationship
with Strasbourg, which, they suggest, may have left the ECtHR reluctant to criticise the Court of Appeals inadequate response to
its earlier judgment in Vinter [2013] ECHR 66069/09. The cost of this perceived concession by the ECtHR for prisoners is continued
uncertainty as to what they must demonstrate to be considered for eventual realise and how meaningful such a review, if carried
out, would in fact be. In the year ahead, this is an issue contributors and readers of the blog might return to in other jurisdictions.
Ravi Amarnaths post (Prisoner Rights at the Forefront of Canadian Debates p 85) raises awareness of introduction of indefinite
detention of prisoners in Canada and Vishwajith Sadananda (Perpetual Life Sentences, Reformation and the Indian Supreme
Court p 83) describes how indefinite life imprisonment in India is replacing the gap left by the Indian Supreme Courts tacit abolition
of the death penalty.
This increase in the length of sentences for those convicted of serious crimes has also been coupled with a more general
deepening of the pains of imprisonment. As discussed Natasha Holcroft- Emmess (Restricting Receipt of Rehabilitative Resources:
The Prisoner Book Ban p 86) the introduction in England and Wales of sweeping of restrictions on the ability of family and friends
of prisoners to send them the semblances of normal life clothing, underwear, books marks a particular low in the respect
shown to the inherent worth of the individual. These pains of imprisonment are particularly severe for certain groups of prisoners,
as illustrated by Jo Barkers post (Women in Prison: The Particular Importance of Contact With the Outside World p 84) outlining
the research on womens experiences of imprisonment. Similarly, Andrew Wheelhouses post (Reporting Restrictions in Criminal
Cases Involving Juveniles p 58), focusing on the High Courts decision to name and shame a child who murdered his teacher,
touches on the issue of custodial sentences for younger members of society and the relative moral capacity of children and adults.
Moving on, a series of posts sensitively addressed the issue of criminal liability for persons assisting those who wish to end their
lives but cannot do so themselves. Writing in the UK context, where this is an offence, Keir Starmer (Prosecuting in the Public
Interest: CPS Guidelines from Assisted Suicide to Social Media p 65), former Director of Public Prosecutions, outlines his red
thread its strands comprised of guidelines, explanations and challenge which ought to inform prosecutorial discretion. The
need for such discretion remains in the UK, after the Supreme Court held it could not declare the prohibition to be incompatible with
right to private life in the instant case before it (discussed in Claire Overmans post Moral Arguments on the Right to Die: Should
Courts Intervene? p 66). As reported by Jennifer Koshan (Supreme Court of Canada Strikes Down Ban on Physician Assisted

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Death p 68), across the Atlantic the Supreme Court of Canada was faced with a similar question, but instead used domestic human
rights provisions to unanimously strike down the prohibition against physician assisted death. It is worth noting both the rights that
each Court perceived to be engaged, as well as the difference in the deference shown to the respective legislatures, reflecting the
constitutional status of each court. Although a landmark judgment, perhaps, as the title of Ravi Amarnaths post (p 69) suggests, the
Implementation of Carter will be the Ultimate Gauge of Success of the Decision.
Finally, the police, as the gatekeepers of the criminal justice system who exercise considerable powers under the law, can
significantly impact on the fulfillment of human rights. Andrew Wheelhouse (The Duty of National Authorities to Investigate
Allegations of Torture p 61) discusses how the positive duty of the police to investigate serious crime has been interpreted and
developed by the Constitutional Court of South Africa to require the South African Police Service to investigate crimes against
humanity in Zimbabwe. In contrast, the gross rights violations resulting from abuse of police power, facilitated by systemic immunity
before the law, are demonstrated strongly in the accounts of police violence in Brazil by Eloisa Machado de Almeida (A Guide to
the Perpetuation of Human Rights Violations: Police Violence and Impunity in Brazil p 62) and in Colombia by Castellanos-Morales
and Castillo-Sanchez (Impunity for Police Violence: Nine Years Since Jhonny Silva-Arangurens Death p 63).
With a particular focus on sentencing and punishment, this collection of posts demonstrates the considerable power that actors of
the criminal justice system have to both crucially protect and desperately undermine the value, experience and even existence of
human lives. The posts effectively illustrate how human rights law and discourse has proved central in efforts to challenge how this
power is used, and remedied when it is abused. Though the collection also hints at how, in interpreting the content and scope of
human rights, the judiciary too can be swayed, for better or worse, by the penal climate produced by politics and public sentiment.
Richard Martin is an Editor of the Oxford Human Rights Hub Blog. He is completing his DPhil on human rights law and practice
within the police, based at the Law Facultys Centre for Criminology, University of Oxford.

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Reporting Restrictions in Criminal Cases Involving Juveniles


By Andrew Wheelhouse | 23rd January 2015

On 3 November 2014 Will Cornick was sentenced to a minimum of 20 years imprisonment for the murder of his teacher Ann
Maguire, after stabbing her in front of her own class. Aged 15 when he committed the crime, he expressed no remorse and it
became clear during the trial that he suffered from a type of personality disorder.

Some commentators have expressed doubts over the appropriateness of imposing such a lengthy custodial sentence on a child.
But an interesting aspect of the case of R v Cornick [2014] EWHC 3623 (QB) and one deserving criticism, is the decision of
Coulson J to drop the reporting restrictions on Mr Cornicks identity.
Section 39 of the Children and Young Persons Act 1933 (CYPA) empowers the Court to prohibit newspapers from revealing a child
or young persons identity. Such an order was made a few days after the murder but The Sun newspaper had already flouted what
used to be convention by publishing Mr Cornicks name before the Court had a chance to rule.
After sentencing the defence applied for the s.39 order to be extended. Media organisations, led by The Guardian newspaper
contested this. An argument based on the right to life under Article 2 ECHR was rejected on the basis that any risk was either
too vague (the risk of attack from other inmates) or insufficient (the defendant was on suicide watch) for the claim to succeed. Of
greater interest is the balancing exercise between the offenders welfare under s.44 CYPA and Article 8 ECHR and the right to
freedom of expression under Article 10 ECHR.
The judge noted the principles identified by Simon Brown LJ in R v Winchester Crown Court ex parte B (A Minor)[1999] 1 WLR 788
including that:



Considerable weight is to be given to the age of the offender, in particular the potential damage of a young person being
identified as a criminal before they reach adulthood.
The court must have regard to the welfare of the child or young person (under s.44 CYPA).
Being named in court, with the accompanying disgrace is a powerful deterrent that it is proper for the Court to pursue.
There is a strong public interest in open justice and in the public knowing as much as possible about what happened in court
including the identity of the perpetrator.

In lifting the restrictions Coulson J quoted authority to the effect that s.33 CYPA is not concerned with rehabilitation and rejected the
idea that rehabilitation would be made more difficult. He noted that publication had already occurred and that the anonymity order
would only last until Mr Cornick turned 18 in 2016. Crucially, on the public interest argument, he said:
This is an exceptional case. Public interest has been huge. There are wider issues at stake such as the safety of teachers, the
possibility of American-style security measures in schools and the dangers of internet loners concocting violent fantasies.
It is submitted that here the judge gave in to the worst aspects of media culture. There was no reason why the above could not be

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properly discussed without reference to Mr Cornicks identity. The judge noted that he came from a normal, loving family rather than
a dysfunctional one. But it is likely that the newspapers could have used that detail if they scrupulously omitted others that would
allow readers to jigsaw together the offenders identity.
One must also question the logical coherence of the public interest factors mentioned. This was indeed an exceptional case,
mercifully rare in British schools, which gives the lie to the notion that there is a serious wider public debate about teacher safety
or the dangers that internet loners pose to the public. In reality the interest of the media probably has more to do with the sort of
macabre fascination with child killers of the sort last seen with the murder of James Bulger in 1993.
This is not to say that the decision was necessarily wrong in law, but it reflects the worrying erosion of the distinction between
children and adults within the justice system. We saw this reflected in the judges view that generally defendants in criminal
cases will be named unless there is absolute necessity for anonymity. One could argue that this ignores the spirit of Article
3(1) of the UN Convention on the Rights of Child which states that in the courts the best interests of the child shall be a primary
consideration, though it perhaps reflects the underdevelopment of this aspect of the law on the Rights of the Child.
Will Cornick committed a most horrific crime, but a civilised society should distinguish between the moral capacity of children and
adults. At the very least this requires more robust reasoning before we permit a child to be named and shamed in this way.
Andrew Wheelhouse was called to the Bar Of England & Wales at Middle Temple in 2013. Between January and July 2014 he
served as a Foreign Law Clerk to Justices Skweyiya and Madlanga at the Constitutional Court of South Africa. He writes here solely
in a personal capacity.

Righting Wrongful Convictions: Is Anguish Enough?


By Siddharth Peter de Souza | 10th June 2014

In a recent judgment, Adambhai Sulemanbhai Ajmeri v. State of Gujarat Criminal Appeal Nos. 2295-2296 of 2010, the Supreme
Court of India acquitted all six men convicted by the High Court of Gujarat for the attack on the Akshardham temple in Gandhinagar,
Gujarat between 24th and 25th of September 2002, which resulted in the death of 33 people, and the injury of more than 85.
The judgment highlighted various peculiarities and deficiencies in the method of investigation, the nature of confessions, the
absence of independent evidence etc., but it received traction more so for the strictures passed against the then Home Minister of
Gujarat and current Prime Minister of India for granting sanction for prosecution without any application of mind and independent
analysis.
The Court emphasized that it could not sit with folded hands, given the perversity in the conduct of the case, from investigation,
to the conviction and awarding of sentence by the Special Court (set up under the Prevention of Terrorism Act 2002), and later
confirmation by the High Court. The Court emphasized the need for it to be more proactive when gross violations of fundamental
rights of citizens were taking place. Before parting with the judgment, the Court registered anguish about the incompetence of the
investigating agency and lamented the fact that the police had booked innocent persons instead of booking the real culprits.
For those acquitted, the past 11 years have been lost, their families have been shattered and the stigma of being a terrorist has
been permanently embedded in their lives.
By merely registering anguish, has the Court abdicated its responsibility of being the custodian of rights and liberties of the most
vulnerable, irrespective of precedent or provisions? To quote Justice Bhagwati Why should the Court not be prepared to forge
new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and
personal liberty? (Khatri v State of Bihar).
Given the perversity of conduct, were strictures and adverse comments about actions of organs of the State and the Judiciary
sufficient? Would such comments hold weight? More importantly did the Supreme Court administer complete justice?
These are questions which the Court should have considered.
Article 142 of the Constitution of India provides the Supreme Court with a wide amplitude of power seen as supplementary to the
limits of the jurisdiction conferred on the Court by statutes. These inherent powers are in respect of any cause or matter especially
where provisions of the existing law are inadequate. Moreover these powers are engineered towards ensuring complete justice
seen as representative of myriad situations and not constrained by procedure or the technicalities of the law.
Interestingly while the Court has used these powers to acquit one of the six convicted in this case, without him even filing an
appeal, it has not extended the same powers to provide relief to the six as victims of wrongful conviction.

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While there is little data which has mapped out wrongful convictions in India, it is the duty of the Court to use such opportunities,
in pursuit of rendering complete justice, to signal to State organs that life and personal liberty cannot be abused on whimsical
grounds. Providing relief to victims of wrongful convictions is the first step. Compensatory jurisprudence for violation of personal
liberty is not new in India and emerged when the Supreme Court, by invoking the right to constitutional remedies under Article 32 in
Rudal Shah v. State of Bihar, awarded compensation to a victim of the erring and arbitrary State. Further the right to compensation
for wrongful convictions is provided under Article 14(6) of the International Covenant on Civil and Political Rights as well as under
Article 10 of the American Convention on Human Rights and Article 3 of the European Convention on Human Rights. In exploring
these provisions the Court should also examine conditions required for smooth transitions of persons back into society like housing,
transportation, education, skill development and health care in addition to adequate monetary compensation for the years lost.
There must also be an official acknowledgment of wrongdoing by the State as recommended by the Innocence Project this would
facilitate the long battle against social stigma.
If punishment entails responsibility, isnt there equally responsibility for wrongful convictions?
Siddharth Peter de Souza is a graduate from Campus Law Centre, Faculty of Law, University of Delhi and is a Judicial Clerk at the
High Court of Delhi.

Equal Treatment for All Except the Highest?


By Jordana Adams | 31st January 2014

A recent resolution of Member States of the International Criminal Court (ICC) puts into question their commitment to respect the
fundamental right of equality for all embedded within Article 1 of the Universal Declaration of Human Rights.
The ICC, established as the first permanent International Criminal Court in 2002, aspires to provide a model for national
jurisdictions throughout the world, mandating that impunity for the most serious crimes of international concern should not be
permitted.
In adopting the resolution by consensus during the 12th plenary meeting, Member States made three seemingly innocuous
additions to Rule 134, which essentially provide for the Accused to be physically absent during part or parts of the trial process.
Concerns have been voiced as to the motivations for adopting this resolution and its compatibility with Article 63 of the Rome
Statute (the Statute), which contains the requirement that the Accused be present during their trial. It would be difficult to deny that
the adoption of this resolution was a direct reaction to calls by the Kenyan delegation, whose President and Deputy President are
currently facing charges before the ICC for crimes against humanity.
Yet the impact of amendments 134bis and 134ter, which allow for presence at trial through the use of video technology and permit
the Accused to be absent and represented by Counsel for part or parts of their trial, respectively, will probably be negligible to
trial proceedings. Moreover, they mitigate the prejudice of subjecting the Accused to a premature sentence in The Hague for the
duration of their trial, which is typically significantly longer than national proceedings.
However, by contrast, Rule 134 quarter, which permits excusal from presence at trial due to extraordinary public duties, creates a
hierarchy of Accused, which goes beyond the remit of the Rules of Procedure and Evidence (the Rules). This rule directly conflicts
with Article 27(1) of the Statute and presents a source of real concern. This article embodies one of the core principles of the court,
which is that the statute shall apply equally to all persons without any distinctions based on official capacity. Thus, the actions of
the Member States are in conflict with the Statute and are contrary to its spirit.
Rule 134quarter goes beyond the scope of both Rules 134bis and 134ter, since unlike the previous rules, it makes no mention of
the duration of the excusal from trial. This omission potentially allows a certain privileged class of Accused, meeting the necessary
requirements, to have a trial in absentia at the Trial Chambers discretion. Should this occur, it is uncertain how the Court would
reconcile such unequal treatment for those elite Accused with the Statute, since Article 63(1) has been interpreted to prohibit trials
in absentia.
The impropriety of Member States seeking to amend the Statute through the Rules and the resultant lack of legal effect will
doubtless be the subject of much discussion and a future Appeal Chamber Decision. However, irrespective of its legal effect,
their irreverence in adopting a Resolution which so patently affords special treatment to the highest members of States sends a
damaging message. That message sorely undermines the establishment of the ICC as a model system for criminal justice. The
idea that we are all equalexcept the highest just doesnt meet the standards of Article 1 of the Universal Declaration of Human
Rights.
Jordana Adams, a Solicitor at BH Solicitors in the UK, holds an LLM in Public International Law from Leiden University and has
worked at the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia.

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Policing
The Duty of National Authorities to Investigate Allegations of Torture
By Andrew Wheelhouse | 8th December 2014

Proponents of universal jurisdiction for international crimes will be gratified by the judgment of the Constitutional Court of South
Africa in the case of National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre
and Another [2014] ZACC 30 which was handed down on 30 October.

The case concerned allegations that the Zimbabwean Police tortured a number of detained persons following a raid on the
headquarters of the opposition Movement for Democratic Change in Harare in March 2007. The raid allegedly occurred under the
instructions of the ruling ZANU-PF party of President Robert Mugabe.
SALC and the Zimbabwe Exiles Forum compiled a dossier, which included sworn statements alleging acts of torture such as
beatings with baseball bats and iron bars, waterboarding, mock executions and electrocution of the genitals of detainees. This was
passed onto the National Prosecuting Authority and the South African Police Service (SAPS) in March 2008.
After much delay the National Director of Public Prosecutions eventually refused to initiate an investigation in June 2009 on the
curious basis that the matter had been inadequately investigated and that further investigations would be difficult.
SALC and the ZEF turned to litigation, seeking to have the refusal to investigate set aside. The lower courts uniformly found in their
favour. By the time the matter reached the Constitutional Court it had sparked huge interest, with no fewer than nine amici curiae
piling into court to weigh in on the side of the NGOs.
The question before the court was whether in the light of South Africas international and domestic law obligations, the SAPS has
a duty to investigate crimes against humanity committed beyond our borders. In a unanimous judgment penned by Majeidt AJ, the
court ruled that there was a duty to investigate and dismissed the appeal by the SAPS. The Court held that the starting point is the
Constitution, which provides for the incorporation of international agreements into South African law by legislation (section 231)
and which makes customary international law part of South African law except where inconsistent with the constitution or primary
legislation (section 232). Accordingly, the Rome Statute and the Torture Convention became part of South African law when they
were incorporated through the ICC Act 2002 and the Torture Act 2013 respectively.
The Court then moved onto the question of presence. It was argued by the SAPS that presence of a suspect was required in South
Africa before an investigation could commence. In rejecting this, Majeidt AJ adopted the comparative analysis of the Supreme

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Court of Appeal below and held that while presence may be needed for prosecution to commence, it is not required to launch an
investigation. It was noted that requiring presence would rob the ICC framework of its efficacy (the suspects include Zimbabwean
cabinet ministers and senior civil servants who, it was intimated at the hearing, periodically visit South Africa for shopping and other
activities).
In light of this there was a duty on the SAPS to investigate international crimes, limited by the principles of subsidiarity (not relevant
here as the Zimbabwean Police have not shown any interest in investigating the allegations and are unlikely to do so any time
soon) and practicability (not relevant here for a number of reasons, not least the proximity of South Africa to Zimbabwe and the fact
that SALC had done the initial spadework to make further investigation viable). The court was particularly unimpressed with the
argument advanced by SAPS that political relations between South Africa and Zimbabwe would be damaged, noting that interstate
tensions were the unavoidable consequence of universality:
The cornerstone of the universality principle, in general, and the Rome Statute, in particular, is to hold torturers, genocidaires,
pirates and their ilk, the so-called hostis humani generis, the enemy of all mankind, accountable for their crimes, wherever they may
have committed them or wherever they may be domiciled.
The premium that the South African legal system places on conforming with international law certainly assisted the Constitutional
Court in deftly negotiating the obstacles that were placed in its way by counsel for the SAPS. By speaking with a unanimous voice
the justices were able to hand down a powerful judgment that also has the benefit of according with common sense. However, it
remains to be seen whether the ordered investigation bears fruit. It could well be years before the alleged perpetrators stand trial, if
any do at all.
Andrew Wheelhouse was called to the Bar Of England & Wales at Middle Temple in 2013. Between January and July 2014 he
served as a Foreign Law Clerk to Justices Skweyiya and Madlanga at the Constitutional Court of South Africa. He writes here solely
in a personal capacity.

A Guide to the Perpetuation of Human Rights Violations: Police Violence and Impunity in
Brazil
By Elosa Machado de Almeida | 26th August 2014

Police violence in Brazil is endemic. It frequently occurs at the time of arrest and during the collection of evidence, and is
embedded in the daily practice of the police institution. Police violence also results in an alarming number of extrajudicial killings
in the State of Rio de Janeiro alone, 3029 people were killed by the police between 2000 and 2010.

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More recently, police violence in Brazil was on full display during mass demonstrations demanding better governmental services
and benefits, which peaked in June 2013 and are still occurring in several Brazilian cities. The police have reacted to these
demonstrations with excessive and disproportionate force, including unlawful arrests and beatings.
The degree of police violence in Brazil is shocking, particularly in light of the 1988 Constitution, which guarantees fundamental
rights (such as the right to life and due process), and of the countrys incorporation of the major international and regional human
rights instruments. Brazil has laws that prevent police misconduct, criminalize torture, and hold the state accountable for human
rights violations. Therefore, Brazil is not a lawless environment; rather, there is an issue of immunity before the law.
The judicial system in Brazil guarantees the police institutions immunity, which is illustrated in three structural problems facilitated
by its institutional design and its relationship with other national, regional, and international review mechanisms. The first of these
problems is institutional paralysis. Internal monitoring mechanisms, such as ombudsmen (corregedorias), are inefficient and
lack transparency. Moreover, in the case of police violence, investigations lie in the hands of the police themselves. In this context,
several justifications for the violent actions of police officers have been used in order to protect them. For instance, legal terms such
as resistance to arrest followed by death and contempt of authority are often used to distort facts to prevent investigations into
police misconduct, such as summary executions and arbitrary arrests (as evidenced by the UN).
The second problem, which I call institutional collusion, refers to the ineffectiveness of Brazilian external controls of police
institutions, such as the Public Attorneys Office (Ministrio Pblico or MP) and the Brazilian judiciary. The MP, whose
constitutional function includes the supervision of police activity, has not adequately performed its duties. If the official version of
events is that someone was killed in a confrontation with the police, there is no external pressure for the MP to investigate the
case, especially as there is no genuine control over its actions. The existing control mechanisms, such as the Internal Ombudsman
(Corregedoria Interna) and National Councils (Conselhos Nacionais), are composed of the MP members themselves and
therefore fall into the institutional paralysis trap described above.
Moreover, on the rare occasions that the judiciary is called to act in these cases, it does not offer appropriate responses to victims
of human rights violations, which leads us to the third problem, namely, monitoring ineffectiveness. Mechanisms created to
step in when the justice system at the state level does not work are inefficient. For example, federalization of serious human
rights violations, when due to failure of the state court system cases can be transferred to the federal judicial system, was
accepted by the federal system in only one case and was requested just five other times. In addition, national institutions treat the
international and regional systems of human rights protection, the UN and the OAS, with contempt. Their decisions are invariably
disregarded, exemplified by the way in which Brazil dismissed, as merely political with no binding legal effect in the country, the
decision of the Inter-American Court of Human Rights ordering an investigation of crimes of the dictatorship.
However, there are rare exceptions. In the Carandiru Massacre case, in which an alleged rebellion of prisoners was violently
suppressed by the police and resulted in the 111 deaths in 1992, police officers were convicted twenty-four years later (although no
police commander has been convicted). In the May Crimes case, where a police response to gang attacks in So Paulo led to the
death of over 450 civilians in 2006, only one officer was convicted, and not until this year. That these convictions are the exception
demonstrates the overwhelming immunity of the police before the law.
The structural problems within the Brazilian judicial system facilitate widespread police violence and impunity. Monitoring and
accountability mechanisms must be improved in order to stem the tide of human rights violations perpetrated by Brazilian police.
Elosa Machado de Almeida is a lawyer, a law professor at FGV Law School in So Paulo, Brazil, and a member of the Lawyers
Collective for Human Rights (CADHu).

Impunity for Police Violence: Nine Years Since Jhonny Silva-Arangurens Death
By Ethel Nataly Castellanos-Morales and Camilo Ernesto Castillo-Snchez | 4th December 2014

Colombias critical human rights situation is a result of both political violence, and organized and petty crime. Whilst ongoing peace
talks with guerrilla forces bring the country closer to the end of formal armed conflict, the protection of human rights will remain
hollow due to the generalization of institutional impunity in all levels. This is harrowingly demonstrated by two historical cases which
shocked Colombian public opinion.
Jhonny Silva-Aranguren was a Chemistry student tragically murdered in September 22nd of 2005 in the Universidad del Valles
campus during a demonstration against the U.S.-Colombia Free Trade Agreement. According to witnesses, a member of ESMAD
(anti-riot police) shot Jhonny when he left the library to go home. Although the individual was fully identified, and the testimonies
and the ballistic evidence were conclusive, nine years on he has not been brought to justice.
Why the state has not investigated, prosecuted and punished the perpetrator? Three main causes of this institutionalized impunity

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have been identified: the attitude of the national government; the negligence of the assigned Fiscala (the prosecutors office); and
the general state of institutionalized corruption.
As an example, immediately following the murder, the Colombian President reacted by rejecting ESMADs responsibility, even
though the criminal investigation had not yet begun. Further, the case was in charge of over ten different government prosecutors in
two years.
It soon became apparent that the negligence of the assigned prosecutors was affecting the progression of the case, which did not
advance for periods of months at a time. To reactivate the case, Jhonnys parents presented an Accin de Tutela in 2007 against
the Fiscalia. They invoked the violation of their fundamental rights to truth and justice, and sought a judicial order to force the
Fiscala to continue with the case. Despite this, the Fiscalia took the decision to end the process, on the ground that there was
insufficient evidence.
Jhonnys parents are still fighting for justice. Following the closure of the case in 2007, they brought a claim before the Tribunal
Administrativo del Valle to obtain a declaration of the Colombian Governments administrative responsibility for Jhonnys death, but
the case has not been solved. Mr. and Mrs. Silva presented a petition before the Inter American Commission of Human Rights in
2008 but the process has not gone beyond the initial stage.
A further case of police brutality occurred in August 2011. A police officer killed a teenage graffiti artist who refused to comply with
a request to stop. The officer involved remains unpunished three years later, although the case remains open in the Proseecutors
Office.
These cases, characterised by inefficient mechanisms for bringing those responsible to justice, are becoming the norm in a country
where institutionalised impunity blights the judicial system.
The Colombian government has continued its efforts towards negotiating a peace process with the main Marixst guerrilla group
(FARC Fuerzas Armadas Revolucionarias de Colombia or the Revolutionary Armed Forces of Colombia). It is hoped that this
will lead to lasting peace, but the above cases demonstrate that even formal peace may not be sufficient to protect human rights
if institutional impunity remains entrenched. Peace will only be a realistic outcome once the authorities focus on eradicating
corruption within the police force, and on educating it on the importance of human rights.
Ethel Nataly Castellanos-Morales is a Ph. D. Candidate at the Instituto de Investigaciones Jurdicas-UNAM, Mxico.
Camilo Ernesto Castillo-Snchez is a Ph. D. Candidate at the Universidad del Rosario, Bogot-Colombia.

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Assisted Dying
Prosecuting in the Public Interest: CPS Guidelines from Assisted Suicide to Social Media
By Keir Starmer | 23rd January 2014

Although the DPPs consent is required before a prosecution for assisted suicide can be brought, the discretion whether to
prosecute or not exists in all cases. In this post, drawn from a lecture given as the LAG Annual Lecture on 5 December 2013, Sir
Keir Starmer KBE QC, DPP, considers how this is, and should, be exercised.
The case of Debbie Purdy
Debbie Purdy suffers from MS for which there is no known cure. Her condition is deteriorating and she expects that there will come
a time when her continuing existence will become unbearable. When that happens she wants to end her life, but by that stage she
will almost certainly need assistance to do so. Her husband is willing to assist but Ms.Purdy does not want to expose him to the risk
of prosecution for assisted suicide.
Before the House of Lords, she accepted that her husband could not be guaranteed immunity from prosecution. Instead she argued
that in order to enable her to make an informed decision as to whether or not to ask her husband for assistance, she needed to
know the factors that the DPP would take into account in deciding whether a prosecution is required in the public interest.
As a result, the House of Lords required me, as DPP, to clarify what [his] position is as to the factors that [he regards] as relevant
for and against prosecution in this very special and carefully defined class of case.
I complied with the Judgment by publishing assisted suicide guidelines. The thrust of the guidelines is reasonably clear. Broadly
speaking if the victim had a clear and settled intent to commit suicide and if the suspect was wholly motivated by compassion and
had not persuaded the victim to commit suicide, the likelihood of a prosecution was low.
The red thread
But, there are risks attached to the exercise of discretion. Whilst in appropriate circumstances it can be a force for good, poorly
exercised discretion can mask corruption and malevolence.
How then can the prosecutor and the system work through the potential for abuse? My answer is very straight-forward and
simple. It runs like a red thread through everything I tried to achieve in my five years as DPP. The CPS should:
1. Guidelines: Set out in advance how it intends to approach the exercise of discretion in any given category of case.
2. Explanation: Explain how any given decision has been reached.
3. Challenge: Provide a practical and effective way of allowing prosecutors decisions to be challenged.
Guidelines
One of the features of my tenure as DPP has been the publication of publicly facing guidelines, setting out in clear terms how the
CPS will approach decision making in difficult and often sensitive areas of the law. Freedom of speech was the thorny issue that
I tried to tackle when drawing up guidelines for prosecutors in cases involving offensive messages sent by social media. Here we
have the problem of old law and new technology rubbing up against each other.
At the turn of the century and in the early 20th century, telephones were developed. Parliament thought that the staff at telephone
exchanges should be protected from exposure to abuse. Accordingly it passed the Post Office (Amendment) Act 1935, making it an
offence to communicate any message by telephone which was grossly offensive or of an indecent, obscene or menacing character.
This offence has remained on the statute book ever since. But, given the recent explosion of social media, the need to find a
sensible balance between free speech and the reach of the criminal law becomes obvious.
In the guidelines I issued to CPS prosecutors, I sought to find that balance by reminding them that just because the content
expressed in a communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific
community, that is not, in itself, sufficient reason to engage the criminal law.
Explanation
Indicating publicly what approach will be taken to the exercise of discretion in difficult or sensitive cases achieves nothing if the
prosecution refuses to explain its decisions and to give reasons.
That is why another feature of my tenure as DPP was the more visible prosecutor. I asked my staff to go out and explain their
decisions. Neither they, nor I, could properly be held to account unless the public knew what decisions we took and why.

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Challenge
Here the principles are very well established. A CPS decision can be challenged if it fails to comply with settled policy, is
unreasonable because irrelevant factors were relied upon, or relevant factors were left out of accounts, or the decision is otherwise
perverse: see R v DPP ex parte Manning ([2001] Q3 330). Where Convention rights are in play, the Human Rights Act 1998 adds
further bite because it allows the courts to subject CPS decisions to even greater scrutiny.
Conclusion
The blunt instruments that criminal law statutes necessarily have to be, can be honed into compassionate and appropriate
casework decisions by the exercise of the public interest discretion. But the exercise of prosecutorial discretion also calls for strict
accountability. And real accountability requires transparency. Hence my red thread: Guidelines; Explanation; and Challenge.
Sir Keir Starmer QC is barrister at Doughty Street Chambers. From 2008 to 2013 he served as Director of Public Prosecutions in
England and Wales and was elected as the Labour Member of Parliament for Holborn and St Pancras in the 2015 General Election.

Moral Arguments on the Right to Die: Should Courts Intervene?


By Claire Overman | 27th June 2014

On 25th June 2014, the UK Supreme Court, sitting as a full bench of nine, handed down judgment in the joined cases of R (on the
application of Nicklinson and another) v Ministry of Justice, and R (on the application of AM) (AP) v Ministry of Justice and DPP
[2014] UKSC 38. The full background to the cases, and the conclusions reached, may be found in the press summary released by
the court.

The court was required to consider two broad issues. One was whether the guidance of the Director of Public Prosecutions on
when assisted suicide would be prosecuted was sufficiently clear. It was unanimously held that it was. The other, which was
whether the court could declare that the present prohibition on assisted suicide was incompatible with the right to private life under
Article 8 ECHR, was more controversial.
Two questions predominated the judgment on the latter issue. First, given that the ECtHR had previously held that laws on assisted
suicide fell within the margin of appreciation of member states, was it nonetheless open to national courts to decide whether there
had been an infringement of Convention rights? The court unanimously held that the compatibility of the UKs assisted suicide laws
with Article 8 fell within the states margin of appreciation, and was therefore for the UK to decide. It was pointed out that Article 2 of
the Human Rights Act requires UK courts to have regard to ECtHR jurisprudence, but not to be bound by it.

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The more difficult question was whether, given the nature of the issue, it was for the courts rather than Parliament to decide. Five
of the nine Justices decided that the court could do so. Lord Neuberger noted, at paragraph 98, that the court has previously had
to rule on cases raising important moral issues (for instance, Airedale NHS Trust v Bland [1993] AC 789, involving the withdrawal
of medical treatment from an individual in a permanent vegetative state). Further, Parliament had not yet sought to intervene in the
present debate with legislative solutions, and in any case, had, by virtue of the Human Rights Act, cast on the courts the function of
deciding whether a statute infringes the Convention.
It was pointed out at paragraph 107 that the court was not being asked to set up a specific scheme for assisted suicide, which
would plainly go beyond its mandate. In contrast, it was not forbidden from concluding that there were a number of possible
schemes.
Nevertheless, despite deciding that the court could hold that the present state of the law on assisted suicide was incompatible with
the applicants Article 8 right, the majority of that majority (three of the five) held that the court could not in the instant case. Lord
Neuberger, at paragraph 116, outlined four reasons for this finding: (1) the question raised a difficult and controversial issue; (2) the
incompatibility was not simple to identify or cure; (3) Parliament had actively considered the issue on a number of occasions; (4)
the House of Lords, in the previous case of Pretty v DPP [2002] 1 AC 800, had held that a declaration of incompatibility of the same
legislation would be inappropriate.
Interestingly, Lord Sumption, of the minority who held that courts could not make a declaration under any circumstances, relied
heavily on precisely the moral arguments that Lord Neuberger had deemed to be of little weight, or in any case, no deterrent to
judicial intervention. Lord Sumption goes further, stating that issues involving a choice between fundamental moral values are
inherently legislative in nature. This appears to fly in the face of cases such as Bland. Indeed, Lady Hale and Lord Kerr, who
would have made a declaration of incompatibility in the present case, themselves engage with moral issues in reaching this
conclusion.
It is likely that, for pragmatic reasons, the fact that Parliament was currently debating the issue was, in reality, determinative. In
particular, both the majority and minority emphasised the fact that the Assisted Dying Bill was presently before Parliament. Given
the judiciarys past willingness to concern itself with thorny moral questions, clear inaction by Parliament in this matter would
certainly have led to a different result. Indeed, Lord Clarke would expect the court to intervene in such a situation. The majority is
therefore clear difficult moral questions do not of themselves preclude judicial intervention.
Claire is a former Editor and Communications Manager of the Oxford Human Rights Hub. She will be commencing pupillage at One
Brick Court in October 2015.

Canadian Constitutional Challenge to Prohibition on Assisted-Dying


By Ravi Amarnath | 21st October 2014

Canadas top court is once again set to decide on the constitutionality of physician-assisted dying for terminally ill patients.
The Supreme Court of Canada heard oral arguments in Carter v Attorney General of Canada 2015 SCC 5 regarding the
constitutionality of physician-assisted dying. Canadas Criminal Code makes it illegal for doctors to assist patients who wish to end
their own lives. In particular, section 241(b) of the Criminal Code makes it a punishable offence of up to 14 years in prison for any
person to aid or abet another individual with taking their own life.
In 1993, Sue Rodriguez, a 42-year-old woman suffering from amyotrophic lateral sclerosis (ALS), challenged the constitutionality of
this provision. Ms. Rodriguez sought allowance for a physician to assist her with taking her own life at a time of her choosing after
she lost the ability to enjoy it. She argued section 241(b) of the Code violated her constitutional rights to life, liberty and security of
the person and to equality, and that the provision constituted cruel and unusual punishment.
By a 5-4 majority, the Supreme Court of Canada ruled against Ms. Rodriguez in the case of Rodriguez v. British Columbia (Attorney
General) [1993] 3 S.C.R. 519, and upheld the constitutionality of the provision. Ms. Rodriguez passed away the following year.
The current challenge to the prohibition on assisted dying started in the Canadian province of British Columbia and was brought
by a number of individuals, including Gloria Taylor and the daughter and son-in-law of Kay Carter. Both Ms. Taylor and Ms. Carter
suffered from intractable diseases and wished to end their own lives. Prior to the commencement of legal proceedings, Ms. Carter
travelled with her family and ended her life at a clinic in Switzerland.
In June 2012, a British Columbia trial judge ruled in favour of Ms. Taylor and Ms. Carters family in Carter v. Canada (Attorney
General), 2012 BCSC 886, declaring certain provisions of the Criminal Code that prohibit physician-assisted dying to be
unconstitutional. The judge noted changes in domestic and international law since the Rodriguez case which allowed her to reach

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this conclusion.
The Court of Appeal for British Columbia subsequently overturned this decision in 2013 on the basis that the trial judge was bound
to follow the Supreme Courts decision in the Rodriguez case. Ms. Taylor had passed away prior to the release of the Court of
Appeals decision.
Proponents of physician-assisted dying argue that adequate safeguards can be developed to ensure that the practice is not
misused, while opponents fear exploitation of vulnerable citizens. The federal government of Canada, which has jurisdiction over
criminal law and therefore the Criminal Code, opposes physician-assisted dying and has expressed no desire to open the debate in
Canadas Parliament.
Currently four European countries the Netherlands, Belgium, Luxembourg and Switzerland and five states in the United States
Vermont, Oregon, Washington, New Mexico and Montana permit physician assisted dying.
Despite Canadas Criminal Code provision, in June 2014, the Canadian province of Quebec passed its own bill providing terminally
ill patients with the right to choose to die. Section 26 of An Act Respecting End-of-Life Care specifies a number of conditions an
individual must satisfy to request medical aid in dying.
Notably, a person must be in an advanced state or irreversible decline in capability, be of full age and capable of giving consent
to care, and must request medical aid in dying in a free and informed manner by the means of a form signed in the presence of
a health or social services professional. Quebec claims its legislation does not contradict the Criminal Code provision as the law
deals with palliative care, which is within the jurisdiction of provinces in Canada, as opposed to criminal law, which is within the
jurisdiction of the federal government.
Quebecs law is set to take effect at the end of 2015, to give hospitals time to establish clinical protocols. Any challenges to
Quebecs legislation will likely be contingent on what the Supreme Court decides from last Wednesdays hearing.
The Court has reserved its judgment and will likely release a decision within the next year.
Ravi Amarnath was born and raised in Fort Saskatchewan, Alberta (Canada). He is a graduate student in law at the University of
Oxford.

Supreme Court of Canada Strikes Down Ban on Physician Assisted Death


By Jennifer Koshan | 16th February 2015

In a landmark decision, on February 6, 2015 the Supreme Court of Canada unanimously struck down the criminal prohibition
against physician assisted death (PAD) in Carter v Canada 2015 SCC 5. The Court declined to follow its 1993 decision in
Rodriguez v British Columbia, which had upheld the prohibition, finding that both the legal framework and socio-legal context had
changed since that time. In Carter, the Court held that the ban on PAD unjustifiably violates the rights to life, liberty and security of
the person contrary to the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms.
The decision focused on persons who have a grievous and irremediable medical condition causing suffering that is intolerable to
them, and who clearly consent to the termination of life. The Court indicated that for such persons, denial of PAD presents a cruel
choice they can take their own lives prematurely, or suffer until they die from natural causes (at para 1). This choice engaged the
right to life under section 7 of the Charter, which protects individuals from government actions that increase the risk of death directly
or indirectly (at para 62). While the Court took no position on whether the right to life also includes a more qualitative right to die
with dignity, it did affirm that section 7 does not create a duty to live (at para 63). Dignity was engaged by the rights to liberty and
security of the person however. As noted by the Court, an individuals response to a grievous and irremediable medical condition is
a matter critical to their dignity and autonomy (at para 66).
Section 7 of the Charter requires proof that the violation of life, liberty or security of the person is contrary to the principles of
fundamental justice. In Carter, the Court found that the prohibition against PAD violated these principles because it was overbroad.
The object of the law to protect the vulnerable from inducement to suicide at times of weakness went further than necessary, as
not all persons seeking PAD were vulnerable to such inducements.
The overbreadth of the law also meant that it could not be justified as a reasonable limit under section 1 of the Charter. While
protecting the vulnerable including persons with disabilities and the elderly is a pressing and substantial objective, the Court
rejected the governments argument that an absolute ban on PAD was reasonably necessary to achieve this objective. The
evidence showed that a regime permitting PAD with safeguards to allow physicians to ensure patient competence, voluntariness,
and the absence of undue influence was feasible and would minimize the risks associated with PAD (at para 106). Evidence of a

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slippery slope from other jurisdictions permitting PAD such as Belgium and the Netherlands was not seen as persuasive in the
Canadian context. The Court clarified that some of the controversial cases arising in these jurisdictions, including euthanasia for
minors and for persons with psychiatric conditions, would not fall within the scope of its decision (at para 111). It also clarified that
its decision would not compel physicians to provide PAD, noting that their freedom of conscience and religion protected under
section 2(a) of the Charter must be reconciled with the rights of patients (at para 132).
The relevant sections of the Criminal Code were declared void as applied to persons with grievous and irremediable medical
conditions causing suffering intolerable to them who consent to the termination of life. The Court suspended this remedy for 12
months to allow Canadian lawmakers to respond with legislation meeting the requirements of its decision.
Carter is consistent with other recent decisions of the Supreme Court giving broad scope to section 7 of the Charter (see e.g. PHS
Community Services Society and Bedford [2011] 3 SCR 134), and, in that context, was not unexpected. Unfortunately, however,
the Court did not find it necessary to consider the equality rights claim under section 15 of the Charter that the ban on PAD had an
adverse impact on persons with material physical disabilities who were unable to take their lives without physician assistance. As
Jonnette Watson Hamilton and I have argued, consideration of the equality dimension of the case would have allowed the Supreme
Court to clarify the law of adverse effects discrimination in Canada. It may also have allowed the Court to engage more deeply
with the competing arguments of disability rights groups who intervened in Carter. Given that new legislation for PAD is now in the
hands of government, it can be expected that this debate will continue in that realm.
Jennifer Koshan is a Professor in the Faculty of Law at the University of Calgary, Canada. Her teaching and research interests are
in the area of constitutional and human rights law and violence against women.

Implementation of Carter will be the Ultimate Gauge of Success of the Decision


By Ravi Amarnath | 18th February 2015

In a unanimous judgment released on February 6, 2015, the Supreme Court of Canada became the ninth jurisdiction in the world
to recognize some form of assisted death. The federal Parliament now has one year to redraft its criminal legislation to permit
physician assisted death.
As discussed by Professor Jennifer Koshan in her Blog post, the substance of the judgment focused on sections 14 and 241(b) in
Canadas Criminal Code.

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Section 14 of the Code provides: No person is entitled to consent to have death inflicted on him, and such consent does not affect
the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given. Section 241(b)
of the Code makes it a punishable offence of up to 14 years in prison for any person to aid or abet another individual with taking
their own life.
Applying section 7 of the Canadian Charter of Rights and Freedoms, the Court held these provisions are void insofar as they
prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has
a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is
intolerable to the individual in the circumstances of his or her condition (para. 127).
The Carter decision brings to an end a two-decade long debate over the constitutionality of criminalizing physician assisted death.
While the courts have now had their say on the matter, two major issues must be addressed to translate the decision into a
workable system for Canadians.
First, while the federal government is responsible for redrafting the criminal legislation, Canadas federal and provincial
governments must determine whose responsibility it is to implement the healthcare scheme that permits assisted death.
The Carter judgment simply requires the federal government to amend the aforementioned Criminal Code provisions. The Court
held: It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with
the constitutional parameters set out in these reasons (para. 126).
Under the Constitution Act, 1867, provinces are responsible for the establishment, maintenance and management of hospitals
(s. 92(7)). For Canadians to have uniform access to assisted death, the federal and provincial governments must work together to
implement a workable regime for these services.
The province of Quebec has already passed its own bill that permits physician assisted death and is set to take effect at the end of
2015. The Quebec government has not indicated whether the bill is subject to change following the Carter decision.
A worst case scenario for advocates of assisted death would be for the Criminal Code provisions to be revised, but for no uniformity
in access to be reached nationwide.
In the case of abortion, for example, in 1988 in the case of R. v. Morgentaler, [1988] 1 SCR 3, the Supreme Court of Canada
struck down a Criminal Code provision which required women to obtain a certificate from a therapeutic abortion committee prior to
obtaining an abortion. To date, the federal government has not passed revised legislation and the practice is not standardized in
Canada, leading to major discrepancies in access across the country.
The second major issue, hinted at by Professor Koshan, will be how to ensure any future scheme accommodates doctors who
object to the practice of assisted death according to their constitutionally protected rights to religion and conscience.
The Court stated: In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide
assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians
colleges, Parliament, and the provincial legislatures. (para. 132)
Any future scheme will have to balance the rights of these doctors while ensuring patients who seek assistance with death can be
accommodated something that is not unique to this area of health policy.
Recently, the College of Physicians and Surgeons for the Canadian province of Ontario released a draft policy paper which requires
physicians who do not provide certain health services on moral or religious grounds to refer the patient to another health care
provider. The draft policy is still under review by the College.
Ravi Amarnath was born and raised in Fort Saskatchewan, Alberta (Canada). He is a graduate student in law at the University of
Oxford.

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Death Penalty
A New Opportunity for the UN to Move Forward the Global Abolition of Death Penalty
By Vincent Ploton | 16th December 2014

On the 2014 world day against the death penalty, Ban Ki Moon made a strong statement calling for global abolition. This declaration
reflects a growing trend toward abolition, and yet 25 years after the adoption of the international treaty to abolish the death penalty,
the level of ratification remains too low.

The United Nations commitment to eradicate the death penalty globally is quite evident. High Commissioners for Human Rights
have consistently been calling on States to abolish and ratify the second Optional Protocol to the International Covenant on
Civil and Political Rights (ICCPR OP2), which provides the best guarantee for sustainable and categorical abolition. 2014 was
a particularly active year of UN engagement against the death penalty: in June, the Human Rights Council adopted a resolution
which highlights abolition as a recurrent item of its work. In October, the OHCHR launched a specific webpage and a compilation
of the most recent arguments and trends for global abolition. Two Special Rapporteurs, Christof Heyns and Juan Mendez, have
also been quite vocal in calling for abolition. With 98 countries having abolished death penalty for all crimes, the global abolition
movement has never looked so strong.
Despite these positive developments, the reality of the situation remains alarming in various ways:



Only 81 states have ratified ICCPR OP2


Several countries such as Indonesia or the Gambia have in recent years resumed executions after multiyear moratoriums
The latest Amnesty International report on death penalty highlights a 15% increase in executions around the world compared
to the previous year
A small number of countries continue to hold the record for most executions carried out, namely China, Iran, Iraq and Saudi
Arabia

Of these record executioners, Iran and Iraq, as well as another notorious executioner, the US, have ratified the ICCPR. That
international treaty currently constitutes one of the most restrictive in regards to death penalty: it can only be applied for the most
serious crimes and pursuant to a final judgment rendered by a competent court (Art.6). Yet the ICCPR, which has been ratified by
167 countries, does not strictly prohibit the application of death penalty.
A new opportunity for the UN to move abolition forward
The UN Human Rights Committee (HR Ctte), almost systematically recommends ratification of the international treaty on abolition

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(OP2) in its concluding observations, but is has never done so in its views on individual complaints under OP1. None of the 42
individual complaints that were brought to the attention of the Committee with regards to death penalty prompted the expert body to
recommend ratification of OP2. There are also noticeable exceptions to the recommendation to ratify OP2: for instance in the cases
of Israel, Sri Lanka or China/Hong Kong where the Human Rights Committee did not recommend a ratification of that treaty.
The upcoming Human Rights Committee general comment on Art. 6 (Right to life) provides a new opportunity for the Committee to
clarify its interpretation of the Covenant in favour of abolition, and to encourage or request ratification of OP2 as a related obligation
under Art.6. In a 1982 General Comment, the Committee had already stated that Art.6 refers generally to abolition in terms
which strongly suggest that abolition is desirable. The current momentum for a global moratorium provides a good window of
opportunity for the Committee to set the interpretation standard for Art.6 even higher.
Let us hope that the global movement of individuals and institutions speaking out against the death penalty will seize the
opportunity of the upcoming ICCPR general comment, and use it to voice their views on how the ICCPR interpretation can be
improved even further to favour abolition.
Vincent Ploton has been working in different humanitarian and human rights organisations for the past ten years. He is currently the
Head of External Relations at the Centre for Civil and Political Rights.

Capital Punishment in China: Room for Cautious Optimism?


By Roger Hood and Carolyn Hoyle | 12th January 2015

Recent weeks have seen the resumption of executions in Jordan, after an 8-year de facto moratorium, and in Pakistan, following
the murderous terrorist attack on a school in Peshawar, along with news of numerous executions each week in Iran. While these
are clear setbacks for those of us who believe that the use of the death penalty is in any circumstances an infringement on the
universal human rights to life and freedom from cruel, inhuman and degrading punishment, they stand in sharp contrast to the
declining use of the death penalty worldwide. Since the end of 1988, the number of actively retentionist countries (countries that
have carried out judicial executions in the past 10 years) has declined from 101 to 39, while the number that has completely
abolished the death penalty has almost trebled from 35 to 99, with a further 33 regarded as abolitionist in practice.
When a critical mass is reached and especially when influential powers abandon the death penalty, those who still maintain it will
come under international pressure to conform to international standards for human rights in the enforcement of punishment. Asia
home to more than 90 per cent of global judicial executions seems to be a thorn in the side of abolitionists, but even there the
picture is somewhat optimistic, as its approach to capital punishment has changed considerably in the past decade.
In 2004 the statement that the State has respect for and protects human rights was written into the constitution, and beginning
around the turn of the millennium there was a distinct change in the discourse, evidenced by the willingness of the Chinese
authorities to discuss the death penalty in human rights seminars and dialogues with European countries and the gradual opening
up of the subject to research. There followed three significant reforms.
In order to ensure more uniformity in the imposition of the ultimate sanction, and to reduce its infliction only for the most serious
crimes, the Supreme Peoples Court (SPC) decided in 2004 that it would in future review all death penalty cases itself. The new
review system came into effect on 1 January 2007, with an order that execution should be reserved for an extremely small number
of serious offenders and carried cautiously in order to avoid wrongful executions. Three months later, Chinas representative,
Mr La Yifan, promised the UN Human Rights Council that the scope of the death penalty would be reduced with the final aim of
abolishment, in line with UN resolutions. Change came in 2011, with the Eighth Amendment to the Criminal Law which removed
13 non-violent capital offences from the criminal law and excluded the elderly from the death penalty, unless the crime was
exceptionally atrocious. Since then, plans have been announced to abolish it for nine more non-violent crimes.
Another factor that has helped to reduce the rate of executions is the increasing use of Sihuan, which suspends death sentences
for a period of two years to give the convicted person an opportunity to show that they have repented. And from January 2007,
the SPC President instructed lower court judges to use immediate execution only as a last resort and only for the most serious
criminals.
While the number of death sentences and executions regretfully remains a state secret (which is widely regarded as a human
rights abuse in itself), they appear to have declined significantly. Indeed, in December 2011, it was revealed at a seminar jointly
organized by the UN Office of the High Commissioner for Human Rights and Chinas Foreign Ministry that since the SPC regained
the final review power over death sentences in January 2007, the number of executions had dropped by approximately 50 per cent.
It has been estimated that China executed 4,000 people in 2011, half of the estimated total for 2006. While this is intolerably high,
it is undoubtedly a significant reduction on past rates. But perhaps as important as execution rates is the changing nature of the
relationship between Europe and China and the success of European soft power to bring about political and cultural change.

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While Chinese political leaders still strongly defend capital punishment as an essential tool to fight crime and preserve social
order in a country of 1.3 billion that is undergoing wrenching economic and social changes, the former defensiveness has largely
evaporated and the debate has come to centre on how abolition might be achieved and what lessons can be learned from
experiences abroad in this regard; how, pending eventual abolition, pre-trial and fair trial procedures with adequate legal defence
in cases liable to the death penalty can be brought into line with international standards to guarantee procedural justice; how the
number of citizens put to death can be restricted and the infliction of the death penalty be based on more rational criteria and made
more equitably; and how public opinion can be moderated and cultural attitudes changed to make abolition acceptable to both the
masses and the legislative and judicial elites. Efforts by the UN, the European Union, the Council of Europe, and the UK Foreign
and Commonwealth Office are clearly paying off.
Professor Roger Hood is Professor Emeritus of Criminology and an Emeritus Fellow of All Souls College, and former Director of the
Centre for Criminology at the University of Oxford.
Professor Carolyn Hoyle is Director of the Centre for Criminology in the Faculty of Law and Fellow of Green Templeton College at
the University of Oxford.

Indian Supreme Court Changes Stance on Death Penalty: Holds Delay to be a Ground for
Commutation
By Gautam Bhatia | 5th February 2014

Recently, in the case of Shatrughan Chauhan v. Union of India, 1 Writ Petition (Criminal) No.55 of 2013, a three-judge bench of
the Indian Supreme Court delivered a landmark judgment on the death penalty: holding, in particular, that an excessive delay in
carrying out the death sentence was an essential mitigating factor in a plea for commutation. In doing so, it joined jurisdictions such
as the United States and the Privy Council, and overruled its own 2013 judgment in Bhullar v. NCT, Writ Petition (Criminal) D.No.
16039 of 2011.

In Bhullar, the Supreme Court relied upon a concurring judgment in the previous case of Triveniben 1989 SCR (1) 509 that
appeared to hold that delay need not be a ground for commutation. The Court drew a distinction between ordinary capital crimes
and capital crimes under terrorism statutes (at issue in Bhullar). It held that because of the serious nature of the crimes involved, an
excessive delay in processing a death row convicts mercy petition need not be a ground for commuting the death sentence to life
imprisonment. Thus, the Court had effectively held that the nature of the capital crime determined the due process treatment that
the convict was entitled to.

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In Shatrughan Chauhan,the Supreme Court comprehensively rejected this reasoning. It held that the Bhullar court had overlooked
the Trivenibens majority judgments contrary stance that a delay in carrying out the death sentence was, indeed, one ground for
commutation; and thus, the Court held Bhullar to be per incuriam (i.e. decided without reference to an earlier relevant judgment,
and thus having no force as precedent). The Court held, on the other hand, that:There is no good reason to disqualify all TADA
cases as a class from relief on account of delay in execution of death sentence. (para 63)
The Court, however, refused to provide a specific time after which a delay would render commutation necessary, and held that each
case would be adjudicated on its own merits. In essence, the Court thus made delay an essential mitigating factor. This would be
considered on the Courts balance sheet enquiry, under which it draws up a list of aggravating and mitigating factors, in order to
decide whether or not to award the death penalty in a particular case.
At the heart of the argument is the idea that keeping a death row convict under the shadow of death for years is a form of cruel,
inhuman and degrading punishment that no civilized society (whether or not it allows capital punishment) should inflict upon human
beings. The inevitable mental agony that accompanies waiting for an inevitable death, demeans individual dignity. Insofar as the
Court has interpreted Article 21s guarantee of the right to life to include treating all individuals with dignity, the judgment reaffirms
the humanism that is the foundation the Constitution, and that whatever the crime might have been, human beings continue to have
a legitimate claim to be treated with dignity under the Constitution.
The Court further held, referring to a copious body of foreign law and international law, that insanity was a ground for commutation
(paras 71 78); this is justified by our basic, intuitive notion that persons in a democracy ought to suffer penalties and burdens only
to the extent that they are responsible for the actions that they undertake and that punishment must respond not just to the nature
of the crime, but to the ability of the actor to understand or comprehend the nature of his actions.
Coming to the fifteen individual cases before it, the Court applied the delay principle to reduce the sentences to life imprisonment.
It ended by framing guidelines for the purpose in future, laying down various requirements such as the written communication of
the outcome of a mercy petition to a convict and his family, the provision of free legal aid, a post-mortem report to verify whether
hanging, as a form of capital punishment, caused undue amounts of pain, and so on.
The Shatrughan judgment is a progressive step in Indian death penalty jurisprudence. Perhaps it is best to leave the last word to
the Court, in its penultimate paragraph, suggesting not just that the death penalty should be administered humanely, but that the
very idea say it softly of State-sanctioned killing of human beings has no place in a civilized democracy:
Remember, retribution has no Constitutional value in our largest democratic country. (para 263)
Gautam Bhatia is a legal academic, and a practicing lawyer based in New Delhi, India. His book, Offend, Shock or Disturb: Free
Speech under the Indian Constitution, will be published by OUP in August 2015.

Meriam Ibrahim Saved from 100 Lashes and the Death Penalty
By Jon Yorke | 28th June 2014

On 11 May 2014, Meriam Yahia Ibrahim was found guilty by the Al-Haj Yousif Criminal Court of charges under the Sudanese Penal
Code (1991), Articles 126 for the crime of ridda (apostasy from Islam) and 146 for the crime of zena (unlawful intercourse in the act
of adultery).
Her husband, Daniel Wani, a US citizen, was not found guilty, but Mrs Ibrahim was sentenced to 100 lashes for the zena crime
and death by hanging for the ridda crime. These are Sharia Hudud punishments. She was detained in the Omdurmans Womens
Prison, with her 20 month old son, and on 27 May, whilst shackled, she gave birth to a daughter.
On 22 May, Mrs Ibrahims lawyers filed in the Sudanese Court of Appeal, in the Khartoum North and Sharg-el-nil Criminal Circuit,
and claimed that the lower court had made errors in both procedure and merit.
It was argued in the defence petition that the court made a procedural error in that it did not have jurisdiction to hold the marriage
null and void, and that the Personal Status of Muslims Code 1991 contained no conclusive provision banning such marriage
(Christian and Christian, see below). Further, Article 61 of the Code establishes that, a void marriage does not yield any
consequence of marriage, and yet, it was argued, this judgment has impacted directly on the Appellant, her child and her [then]
unborn baby.
As to the merits, after stating that there is no compulsion in religion (Surat Al-Baqara, verse 256), the defence brief identified that
Mrs Ibrahim had been a Christian who attended Khartoum Catholic Church, and met her husband whilst a practising Christian. Her
marriage was conducted in public at the church on 19 December 2011, and the authorities only became aware of the Ibrahim family

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in September 2013 when a man claiming to be her brother, informed the authorities that she had married a Christian and that she
had committed adultery. It was the misrepresented position of her personal faith and beliefs that set in motion the horrific events
that followed.

Mrs. Ibrahims lawyers, along with Redress, the African Centre for Justice and Peace Studies, the Sudanese Organization
for Development and Rehabilitation, the Sudanese Human Rights Initiative and the Justice Center for Advocacy and Legal
Consultancy, submitted a Complaint on 2 June, with the African Commission on Human and Peoples Rights. On 10 June, an
Urgent Appeal was lodged with the Special Rapporteur on Womens Rights, Soyata Maiga. It was claimed that Sudan had violated
the African Charter on Human and Peoples Rights (ACHPR).
In essence, the claims were that Mrs Ibrahim suffered gender and religious discrimination under ACHPR, Articles 2 and 3, suffered
torture and ill-treatment under Article 5, and that her right to liberty and security of the person had been violated under Article 6.
Her right to a fair trial had been violated under Article 7, and her freedom of conscience and religion was violated under Article 8.
Furthermore, her childrens rights were violated, contrary to Article 18(1), which states that the familyshall be protected by the
State which shall take care of its physical health and moral.
As these appeals were pending, there was an immense global outcry by politicians and civil society, and on 31 May, Abdullahi
Alazreg, Under-Secretary of the Sudanese Foreign Ministry, appeared to speak out of turn as he indicated that Mrs Ibrahim would
be released. However, the domestic courts, and the African Commission, were still considering the case and so this statement was
premature.
The Sudanese Court of Appeal judgment of 22 June, which overrules the Al-Haj Yousif Criminal Court judgment, is to be
commended. It is judicial affirmation of the rule of law and a protection of human rights.
However, this case, and the international exposure it has received, has demonstrated that there are serious questions concerning
womens rights, religious freedom, the protection of the family, and the welfare of children, which the government of Sudan must
address. If there is not legislative change to remedy these deficiencies, it is hoped that the lower courts in Sudan will adhere to this
Court of Appeal decision and protect others from the horrific treatment which the Ibrahim-Wani family has recently endured.
Dr Jon Yorke is a Reader in Law at Birmingham City University. He is a Member of the Foreign Secretarys Expert Panel on the
Death Penalty and has been a consultant for the United Nations and the European Union, advising on death penalty issues.

Federal Judge Strikes Down California Death Penalty as Unconstitutional


Carol S. Steiker | 6th August 2014

In a stunning and possibly prescient decision of Jones v Chappell, Case No.: CV 09-02158-CJC, the United States District
Court Judge Cormac J. Carney of the Central District of California struck down the state of Californias death penalty system as
unconstitutional under the Eighth Amendments prohibition against cruel and unusual punishment.

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Instead of addressing the particularities of the defendants case, Judge Carney widened his lens to scrutinize the California death
penalty system. He noted that while over 900 people have been sentenced to death since Californias current system was adopted
in 1978, only 13 have been executed. He observed that Californias lengthy delays between sentence and execution have quietly
transformed a sentence of death into a sentence that no rational jury or legislature could ever impose: life in prison, with the
remote possibility of death. In such a system, Judge Carney concluded, the random few who actually do eventually get executed
will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be
arbitrary.
This decision is extraordinary along a number of dimensions.
First, the messenger: Judge Carney is no bleeding heart liberal on criminal justice matters. He was appointed to the federal bench
by Republican President George W. Bush after serving briefly as a California state court judge in conservative Orange County
following a substantial career in private practice. A ruling from an experienced, cautious, and non-ideological jurist like Judge
Carney will and should receive careful attention.
Second, the zeitgeist: We are in an extended period of greatly increased skepticism about the American death penalty. Today,
executions are down more than half from their nationwide peak in the late 1990s, and new death sentences are down by more than
two-thirds. Six states have legislatively repealed capital punishment over the past decade. Concerns about wrongful convictions in
capital cases and botched executions from lethal injection protocols are on the rise. Judge Carneys decision adds a new critique to
the growing chorus of consternation.
Finally, the context: California has long been known as Exhibit A in the case against the American death penalty on procedural
dysfunction grounds. As Judge Carney points out, execution is not the leading cause of death on Californias Death Row. Indeed,
execution is not even the second leading cause of death on Californias Death Row; it comes in third after natural causes and
suicide. Such a system cannot possibly deliver any benefit from the rare and random execution that does eventually occur.
Californias systemic dysfunctions may be extreme in their degree, but they are not unusual. Across the country, the steep decline
in death sentences and executions has rendered capital punishment both more rare and random than it has been in decades.
The current dysfunctional state of the American death penalty is not without precedent, however. In the 1960s and early 1970s,
a spate of legislative abolitions preceded a steep decline in public support and use of capital punishment. The few death
sentences that were imposed were the product of broad and standardless sentencing statutes that permitted, even invited,
arbitrary application. These conditions led key swing Justices Potter Stewart and Byron White to join the five-Justice majority that
(temporarily) invalidated the American death penalty in the landmark decision of Furman v. Georgia in 1972 408 U.S. 238. As
Justice Stewart wrote, the Constitution cannot tolerate the infliction of a sentence of death under legal systems that permit this
unique penalty to be so wantonly and so freakishly imposed. Justice White agreed on the ground that arbitrary imposition of the
death penalty could not serve the punishments legitimate penological goals of deterrence or retribution:

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At the moment that [the death penalty] ceases realistically to further these purposes, . . . its imposition would then be the pointless
and needless extinction of life with only marginal contributions to any discernible social or public purpose. A penalty with such
negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.
These quotes both appear in Judge Carneys opinion striking down the California death penalty. And appropriately so the same
concerns that initially led the Supreme Court to first invalidate and then attempt to regulate the American death penalty under the
Constitution are the very same concerns that are growing today about our current death penalty practices. Whatever happens in
the review process of Judge Carneys decision, the observations and arguments that he made will continue to echo and may well
prove him to be a prescient voice in the constitutional history of the American death penalty.
Carol S. Steiker is Henry J. Friendly Professor of Law, Harvard Law School.

Glossip v. Gross: SCOTUS to Consider Oklahomas Lethal Injection Protocol


By Jon Yorke | 4th February 2015

On Friday 23rd January, 2015, the US Supreme Court granted three Oklahoma death row inmates certiorari to challenge the
states three-drug lethal injection protocol. In Baze v. Rees 553 U.S. 35 (2008), it was held that an execution protocol which
provided for an initial injection of a fast-acting barbiturate (sodium thiopental), then a paralytic agent (pancuronium bromide) which
stops respiration, and finally a drug to induce a cardiac arrest (potassium chloride), did not violate the US Constitutions Eighth
Amendments Cruel and Unusual Punishments Clause.
In Warner v. Gross, (No. 14-6244, 12 January, 2015) the United States Court of Appeals for the Tenth Circuit, denied a challenge
to Oklahomas adoption of midazolam as a replacement for sodium thiopental. As a result of the post-Baze decline in Food and
Drug Administration licences to American pharmacological companies to supply drugs to state and federal prisons for the use in
executions, and the contributory effect of international human rights law, such as the EUs Commission Implementing Regulation
(EU) No. 1352 (2011), there has been a depletion of supplies of sodium thiopental for the use by American prisons in the death
penalty.
The retentionist states have had to identify an alternative drug to formulate an execution. Whilst Baze acknowledges that some
risk of pain is inherent in any method of execution, and that the Constitution does not demand the avoidance of all risk of pain in
carrying out executions, a violation of the Eighth Amendment does occur when the conditions presenting the risk must be sure or
very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.
The current litigation has introduced substantial medical evidence that Oklahomas use of midazolam produces adverse reactions.
On 29 April 2014, midazolam was used in the execution of Clayton Lockett. He strained on the gurney in extreme physical pain,
claiming, something is wrong and the drugs arent working. He was not in a coma-like state following the initial drug, and the
execution team observed a large swelling at the IV access point. The White House released a statement that the execution, fell
short of humane standards.
There is significant doubt as to whether midazolam can effectively act as a sedative in compliance with the Baze criteria and the
three questions the US Supreme Court will consider in Glossip v. Gross are:
1. Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a wellestablished scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like
unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering
from the administration of the second and third drugs when a prisoner is conscious?
2. Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court
considered in Baze?
3. Must a prisoner establish the availability of an alternative drug formula even if the states lethal-injection protocol, as properly
administered, will violate the Eighth Amendment?
The first two questions can be classified as normative constitutional issues within the assessment of the protocol. The third question
places upon the defendant the task of establishing to a degree of medical certainty that the sedative will not act in accordance with
constitutional standards. It potentially will place the burden on the defendant to establish that there is an alternative protocol that if
the state adopts, will produce an execution of the defendant that does meet the Baze criteria.
Are we going to see the Court establish a new rule that assessing the legitimate standards set out in Baze, for pain in punishment,
shifts from the responsibility of the state to the responsibility of the prisoner? This would be a quixotic result. What the litigation
concerning the Oklahoma protocol demonstrates is that there are still, and perhaps always will be, irredeemable consequences that

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renders lethal injection a form of torture.


Dr Jon Yorke is a Reader in Law at Birmingham City University. He is a Member of the Foreign Secretarys Expert Panel on the
Death Penalty and has been a consultant for the United Nations and the European Union, advising on death penalty issues.

Executing the Intellectually Disabled: A Stronger Prohibition


By Jon Yorke | 12th June 2014

On 21 February 1978, Freddie Hall and his accomplice, kidnapped, raped and murdered a young woman, and in a separate
incident, killed a sheriffs deputy. Halls siblings, teachers, and the Florida sentencing judge acknowledged that he was raised under
horrific family circumstances. As a child, he was beaten between ten to fifteen times a week.

There is substantial evidence that Hall suffers from a severe intellectual disability, and it is clear that he was unable to contribute
effectively to his own defence. However, this evidence was not considered enough to mitigate the capital offence. In Hall v. State
No. SC10-1335 the Florida Supreme Court upheld his death sentence, holding that because his IQ was identified at 71, he was
above a strict threshold of 70, as established in Cherry v. State No. SC02-2023.
Previously, the U.S. Supreme Court in Atkins v. Virginia 536 U.S. 304 (2002) had used diagnostic standards to formulate a three
pronged test for identifying intellectual disability for capital proceedings (a) significant sub-average intellectual functioning
(established through an IQ test); (b) deficits in adaptive functioning (the inability to learn basic skills and adjust behaviour to
changing circumstances); and, (c) onset of defects during the developmental period (e.g. before 18 years of age).
The Florida statute acknowledges the diagnostic flexibility for Atkins proceedings, but the Florida Supreme Court interpreted the
statute narrowly, at variance with the American Psychiatric Associations (APA) Diagnostic and Statistical Manual, which provides
that, A person with an IQ score above 70 may have such severe adaptive behaviour problemsthat the persons accrual
functioning is comparable to that of individuals with a lower IQ score. The APA amicus curiae brief stated, the relevant clinical
authorities all agree that an individual with an IQ score above 70 may properly be diagnosed with intellectual disability if significant
limitations in adaptive functioning also exist.
In Hall v. Florida 572 U.S. ___ (2014) decided by the US Supreme Court on 27 May, 2014, Justice Kennedy held, in a 5-4 majority,
that the Florida Supreme Court ruling disregards established medical practice as it takes the IQ score as final and conclusive
evidence of a defendants intellectual capacity. Furthermore, while experts say that IQ should be taken within a standard error of
measurement, the Florida Supreme Court used the test score as a fixed number, thus denying the imprecise nature of diagnosis.
Justice Alito dissented, joined by Chief Justice Roberts, and Justices Scalia and Thomas, stating that what counts are our societys
standards which is to say, the standards of the American people not the standards of professional associations, which at best
represent the views of a small professional elite.

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However, Justice Alito provided no specific guidance to demonstrate how American society is better equipped than the small
professional elite to determine complex cognitive evaluations. He further inadequately opined that the Court implicitly calls upon
the Judiciary either to follow every new change in the thinking of these professional organizations or to judge the validity of each
new change.
The judicial system will always have to grapple with the ethical and scientific questions posed by advances in medicine. The courts
can most appropriately do this after and not before new medical techniques, diagnosis and treatment, are identified.
Justice Kennedy did not base his decision upon diagnostic standards. He used evaluative criteria to inform the adjudication of
what is considered appropriate protection of human dignity under the Eighth Amendments prohibition against, cruel and unusual
punishments. He held, Floridas law contravenes our Nations commitment to dignity and its duty to teach human decency as the
mark of a civilized world.
It is not insignificant that he shifts the focus from the Nation to the world. It reflects the evolving international discourse that the
death penalty is a violation of human dignity, most specifically advanced by the European Union and the Council of Europe, and
it is consistent with the denunciation of the death penalty for persons suffering from intellectual disabilities in R.S. v. Trinidad and
Tobago.
The furtherance of dignity and decency is our global, cosmopolitan, call. If the dissenters had had their way, simply put, it would
have made it easier for states to execute people with intellectual disabilities. Justice Kennedys judgment is a victory for human
rights and the evolution of science and medicine.
Dr Jon Yorke is a Reader in Law at Birmingham City University. He is a Member of the Foreign Secretarys Expert Panel on the
Death Penalty and has been a consultant for the United Nations and the European Union, advising on death penalty issues.

Whole Life Sentences


Hutchinson v UK A Change in Direction on Whole Life Orders?
By Neil Shah 23rd | February 2015

The European Court of Human Rights (ECtHR) has ruled in Hutchinson v UK 2015] ECHR 111 that the imposition of a whole life
order for murder does not violate Article 3 ECHR. The decision, a clear victory for the UK, is surprising given the Courts previous
case law and is unlikely to be the last word on this controversial issue.
The case concerned a challenge brought by Arthur Hutchinson who was convicted in 1984 for three counts of murder, rape and
aggravated burglary. The circumstances of the crimes were particularly egregious with the then Lord Chief Justice commenting that
Hutchinson should never be released quite apart from the risk that would be involved. The Home Secretary (then responsible for
determining the minimum term a prisoner should serve after a murder conviction) imposed a whole life order. Following the passing
of the Criminal Justice Act 2003 Hutchinson applied for that sentence to be reviewed. Tugendhat J held that there was no reason to
change it and the Court of Appeal dismissed Hutchinsons appeal. Hutchinson accordingly turned to the ECtHR.
In July 2013 the Grand Chamber of the ECtHR held in Vinter [2013] ECHR 66069/09 that the imposition of whole life orders under
English law did violate Article 3 because the law lacked clarity as to the existence of an Article 3 compliant review mechanism (the
Court stated that for a sentence to be Convention compliant there had to be a prospect of release and possibility of review and
that the mechanism for this had to exist at the time the sentence was passed). A specially constituted Court of Appeal considered
this decision in R v McLoughlin [2014] EWCA Crim 188 and expressly rejected the ECtHRs conclusion. Instead it implied that
the ECtHR had misunderstood English law, set out how domestic law would treat applications for release and declared that it
did provide offenders with a clear hope or possibility of release in exceptional circumstances (a power which, under the relevant
legislation, is the Secretary of States to exercise).
Hutchinson argued that this was insufficient, that the reasoning of the Court of Appeal in McLoughlin did not differ in substance from
earlier English decisions which Vinter had considered before nevertheless finding a violation, and that review of whole life orders
required a judicial not executive decision. One might have expected these arguments to succeed, not just in light of Vinter, but also
the courts other recent decisions (considering this issue albeit in different contexts) in Magyar v Hungary [2014] ECHR 491 and
Trabelsi v Belgium [2014] ECHR 893. The Court of Appeal may have confidently declared that English law was clear but nothing
has actually been done to remove the uncertainty of what steps a prisoner needs to take, from the time of incarceration, to be
considered for eventual release one of the ECtHRs main sticking points.
Yet the Courts Fourth Section rejected them noting that given a Contracting States margin of appreciation it was not its task to
prescribe the form (executive or judicial) that a review should take and, significantly, that the Court of Appeals direct and reasoned

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response to the Grand Chambers concerns in Vinter was sufficient; the Court of Appeal, it said, had set out an unequivocal
statement of the legal position and the ECtHR had to accept that interpretation of domestic law. As such there was no violation of
Article 3.
Much has been said of the importance of judicial dialogue between Strasbourg and our domestic courts, particularly in the current
climate (see for example Natasha Holcroft-Emmess post) but Hutchinson simply muddies the waters. The decision undercuts
Vinter without saying so. The ECtHR has back peddled in the past (the Grand Chambers decision in Al-Khawaja and Tahery [2011]
ECHR 2127 in response to R v Horncastle [2009] UKSC 14 is one example) but it must acknowledge that such is the course being
taken. If Vinter went too far in requiring the existence of a detailed review mechanism at the time of incarceration (with the English
system therefore being sufficiently Convention compliant) then Strasbourg should say so; if it didnt (which seems more likely) then
it is hard to see how McLoughlin really addresses one of the key areas of complaint. Ambiguous and contradictory decisions are not
conducive to legal certainty and it seems likely that Hutchinson will go to the Grand Chamber.
Neil Shah is a barrister at Coram Chambers and is a former BCL student of St. Cross College, University of Oxford.

Whole Life Sentences in Hutchinson v UK Compromise or Concession?


By Natasha Holcroft-Emmess | 5th February 2015

In Hutchinson v UK [2015] ECHR 111 the ECtHR again addressed the vexed question of the compatibility of whole life sentences
with human rights law. This post analyses the Chamber decision, recognising the value of judicial dialogue, but also highlighting
cause for concern where problematic questions remain.
The starting point is the Grand Chamber case Vinter v UK [2013] ECHR 66069/09. In this decision, the highest authority in the
ECtHR criticised the English law on mutability of whole life sentences. It was held that the narrow scope for reducibility of such
sentences under s 30 Crimes (Sentences) Act 1997, on compassionate grounds limited primarily to terminal illness or physical
incapacitation, was incompatible with Article 3 ECHR (freedom from inhuman and degrading treatment / punishment).
In McLoughlin [2014] EWCA Crim 188, the Court of Appeal disagreed with the ECtHR. Despite the restrictive written policy of the
Secretary of State, found in the 1997 Act and the Lifer Manual, the court held that Article 3 was adequately protected. This was
because the Secretary of State was obliged to make decisions compatibly with Article 3, and this would involve a consideration of
all the relevant exceptional circumstances. The effect of the Court of Appeal decision was that it did not matter that the policy on
reducibility of sentences has not been reformulated. The combination of that policy with the judicial interpretation provided by the
Court of Appeal made the law sufficiently clear and did not violate Article 3.
In Hutchinson, a majority of the Chamber accepted this approach. The majority relied on the practice of allowing questions of
interpretation of domestic legislation to be resolved by the national authorities. This was enough to satisfy the majority that the law
is now sufficiently clear.
There is a positive corollary of this vexed debate. It seems that the courts are working on the basis of a (gradually developing)
consensual acceptance that reducibility of sentence is key. These cases also provide an example of judicial dialogue between the
domestic and supranational courts, which should assist to cement the ECtHR as an important forum in human rights debates.
However, problems remain. It is doubtful whether this jurisprudence suffices to address the concerns of the Grand Chamber in
Vinter. At [126] the Court held that it must be concerned with the law as it presently stands on the published policies as well as in
judicial dicta and as it is applied in practice to whole life prisoners. The fact remains that the Secretary of State has not altered
the terms of his explicitly stated and restrictive policy on when he will exercise his section 30 power. Should not the published
guidance of the executive be required to match the scope of the legal policy set out by the Court of Appeal? It hardly begets legal
certainty that these decisions rest with the Secretary of State, who appears to have free rein over what counts as exceptional
circumstances.
In a dissenting opinion, Judge Kalaydjieva questioned the assumption that the Grand Chamber was not fully informed about the
scope of the Secretary of States discretion, and the manner of its exercise, in reaching its conclusions in Vinter. Her dicta, although
cautious, appear to be quite telling: I do not deem myself competent to determine whether the Court of Appeal expressed an ex
tunc trust or an ex nunc hope that, even though to date the Secretary of State for Justice has not amended the content of the Lifers
Manual after Vinter, he was, is and always will be bound to exercise his power in a manner compatible with Article 3 [I]n so
far as the Court of Appeals part in the admirable post-Vinter judicial dialogue said Repent!, I wonder whom it meant?
Perhaps it is relevant that the Chambers acceptance of the Court of Appeals gloss on the UK rules comes at a time when the
ECtHR is particularly vulnerable. The entire debate has been played out in the shadow of political contentions to renegotiate the
UKs relationship with the ECtHR. It is argued that good judicial dialogue and steadying relations between the UK and ECtHR are

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valuable. But the ECtHR must be careful not to take concessions where more could be done to ensure adequate protection for
human rights, especially where rights as important as liberty may be compromised.
Natasha Holcroft-Emmess is currently studying for the LPC. She has recently completed the BCL with distinction and is a frequent
contributor to the Oxford Human Rights Hub Blog.

Throwing Away The Key Whole Life Sentences in the Court of Appeal
By Natasha Holcroft-Emmess | 1st March 2014

Flouting the judgment of the European Court of Human Rights (ECtHR) in Vinter v UK [2013] ECHR 66069/09, the UK Court of
Appeal has held that whole life sentences do not violate Article 3 ECHR (R v McLoughlin [2014] EWCA Crim 188 see Neil Shahs
post). This post explains why the Court of Appeal decision is wrong and why it matters.
Article 3 ECHR prohibits inhuman and degrading treatment and punishment. The ECtHR held that UK sentencing law permitting
whole life orders violates Article 3 because it does not allow for any real possibility of review. As the law currently stands, the only
prospect of release for a whole life prisoner is under compassionate grounds in exceptional circumstances. In reality this means
only if such a prisoner is severely physically incapacitated or terminally ill.
Does this fit with the requirement of a review of imprisonment to determine whether it continues to serve a legitimate penological
purpose? No. In such circumstances, would allowing a prisoner to die on the outside, rather than behind prison walls, constitute a
meaningful prospect of release, sufficient to satisfy the prohibition on inhuman and degrading treatment? No. Does the current UK
law, as recently upheld by the Court of Appeal, comport with the basic standards of respect for human dignity which underlie the
spirit of the human rights obligations accepted by the UK under the ECHR? No.
For these reasons, the Court of Appeals decision to flout the ECtHR jurisprudence on whole life sentences is wrong. It denies
minimalist procedural protection for a substantive right of fundamental importance.
To be entirely clear: people still can, and should, be imprisoned for a very long time for very serious crimes. That imprisonment can
and, in many cases, will last until the end of such prisoners lives. All that Vinter said was that imprisonment must be reviewed after
lengthy periods. We cannot throw away the key. To do so constitutes inhuman and degrading treatment. The availability of review

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does not deny the seriousness of the crimes which these people committed. All it does is preserve the bare minimum of the basic
rights afforded to all human beings.
Some in the media have argued that such decisions, which bring the ECtHR into conflict with the UK politically, actually undermine
human rights, because protecting prisoners rights discredits the ECtHRs judgments and gives human rights a bad name. But
these are in fact exactly the cases in which human rights protection is most needed.
UK laws are, and should be, made by a sovereign Parliament. But these laws are instigated and supported by governments and
parliamentarians who are keen to please the voting majority. They are therefore susceptible to the views of this majority. The
majority often either takes no interest in, or effectively suppresses, the interests of minorities. Prisoners are a minority group which
the majority actively dislikes. As a result, their interests are marginalised, and little account is taken of them in the laws which the
representatives of our majoritarian democracy enact. Yet, just because these people are subject to the criminal law does not mean
that they forfeit the rights which are afforded to everyone by virtue of their humanity. It is well established in domestic UK law that
prisoners retain their human rights.
It is in these situations that human rights are most needed. They are not discredited where they protect the interests of unpopular
minorities in society. On the contrary, such situations show that human rights are achieving their most difficult and important
objective: protecting the basic rights of the marginalised from suppression by the prevailing majority.
That is why getting it right matters. That is why we cannot throw away the key.
Natasha Holcroft-Emmessa London-based solicitor. She completed the BCL with distinction and is a frequent contributor to the
Oxford Human Rights Hub Blog.

Court of Appeal Affirms Ability to Pass Whole Life Tariffs for Murder
By Neil Shah | 20th February 2014

A specially constituted five-member Court of Appeal has ruled unanimously in R v McLoughlin [2014] EWCA Crim 188 that the
imposition of a whole life order for murder not does violate Article 3 ECHR. The case is particularly noteworthy given the contrary
position reached by the European Court of Human Rights (ECtHR) in Vinter [2013] ECHR 66069/09.

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The case concerned appeals brought by three persons convicted of murder and given whole life orders and one reference by the
Attorney General under section 36 of the Criminal Justice Act 1988 that a minimum term of 40 years was unduly lenient. In the
latter case the trial judge considered, in light of Vinter, that he was prohibited from passing a whole life order and thus imposed the
lighter sentence. One appellant abandoned his appeal and it was confirmed that another had not in fact received a whole life order;
as such only the cases of McLoughlin (the AGs reference) and Newell, two persons convicted of murder for a second time, were
determined.
English law mandates that those convicted of murder receive a sentence of life imprisonment. The trial judge sets a minimum
term that must be served before the prisoner can be considered for release by the Parole Board; in some cases the judge may
determine that the minimum term is the offenders whole life. The statutory scheme governing such decisions is found in section
269 and schedule 21 of the Criminal Justice Act 2003. Further, section 30 of the Crime (Sentences) Act 1997 gives the Secretary
of State the power to release a life prisoner in exceptional circumstances on compassionate grounds.
In Vinter the ECtHR held that for a sentence to be compatible with Article 3 there must be a prospect of release and a possibility
of review as detention always had to have a legitimate penological purpose and the original justification could shift over time. The
Court stated that a review mechanism must exist at the time the sentence is passed and that a life prisoner should know what to
do to be considered for future release and not have to serve an indeterminate number of years before being able to complain that
his sentence was no longer justifiable. In finding a breach of Article 3 the ECtHR stated that English law lacked clarity and certainty
as despite authority indicating that section 30 should be interpreted broadly the Prison Service Order was drafted in extremely
restrictive terms (providing, essentially, for release on compassionate grounds only when a prisoner was terminally ill).
The Court of Appeal expressly disagreed with Strasbourg on this point. The fact that the Order had not been changed was of no
consequence because English law was clear as to the possibility of release in exceptional circumstances and the Secretary of
State in exercising that power (a decision subject to judicial review) would have a duty to act in a Convention-compliant manner and
could not be restricted by the Order. There was therefore no incompatibility between Article 3 and existing English law and courts
could continue to hand down whole life orders. In the present case, McLoughlins sentence was thus increased to a whole life
order and Newells appeal was dismissed.
The Court of Appeals judgment is certainly a victory for the government, yet it does leave questions unanswered. Thus, what
constitutes exceptional circumstances has been left open with the Court expressly noting that it was difficult to specify what
these might be. Individual offenders may still therefore remain unclear as to what they need to demonstrate and when in order to
be considered for compassionate release (both points of issue for Strasbourg). It could of course be argued that it is impossible
to specify a when at the time of incarceration (notwithstanding Vinter) as the very point of a whole life order is that, at the time
of sentencing, it is seen as the only just order. As for the what the simplest solution might be to revise the Prison Service Order.
In fact it seems nonsensical not to when on the face of it the policy stated therein is not Convention-compliant. Indeed, had the
government done this in the first place the need to go back to the Court of Appeal might have been avoided entirely.
Neil Shah is a barrister at Coram Chambers and is a former BCL student of St. Cross College, University of Oxford.

Perpetual Life Sentences, Reformation and the Indian Supreme Court


By Vishwajith Sadananda | 12th April 2014

It is trite to say, or so we hope, that a retributive criminal justice system has no place in a society conceived from the idea that
human rights in general, and human dignity in particular, is of paramount importance. As civilized societies dedicated to democracy
and constitutionalism, a system of reformative justice seems but natural.
However, while perhaps indicating a move towards tacit judicial abolition of the death penalty (para 264), the Indian Supreme Court
is now moving towards another extreme direction whereby indefinite life imprisonment (LI) is becoming the norm. To effectuate the
same, the Supreme Court has been following two different approaches:
1. Explicitly mandating, in cases such as Swarmy Shraddananda v State of Karnataka Criminal Appeal No.454 of 2006, that
remission, except by the Governor or President under their constitutional powers, would not be granted to the convict by the
State (though the power to grant remission is the sole prerogative of the Executive).
2. Mandating sentences of convicts under multiple charges to run consecutively, and not concurrently, as was the case in
Shankar Kisanrao Khade v State of Maharashtra Criminal Appeal No.362-363 of 2010. To put it simply, if a person has been
convicted under three separate charges and given 25 years LI under each charge, after the completion of the first sentence
under the first charge, the sentence under the second charge would kick in. As a result, even if the Court does not rule out the
option of remission explicitly, it becomes next to impossible to seek the same due to the consecutive nature of the sentences.
This approach seriously undermines the rehabilitative approach that a responsible State ought to pursue. Not only is this approach

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not in consonance with reformative criminal jurisprudence per se, but also contradictory to the approach taken in a number of
previous Supreme Court decisions which require the Court to determine whether or not a convict can be reformed and rehabilitated
(and which therefore highlight that rehabilitation into society is in fact an important factor).
Furthermore, while reformation of a life convict is theoretically possible inside a prison, the Indian prison scenario leaves a lot to be
desired for this to become a reality. The National Human Rights Commission reports that there are at least four deaths per day in
Indian prisons, with a total number of 14,231 prisoners dying in police custody from 2001 to 2010. In 2011, 1332 prisoners died in
prison. Furthermore, according to a report of the Asian Centre for Human Rights, most of these deaths were directly attributable to
police brutality and torture.
Additionally, as disclosed by a recent report of the National Crime Records Bureau, Indian prisons are heavily crowded and far
exceed their sanctioned strength. As of 2013, the total prison density in India is estimated to be around 112.1%. These prisons
are unhygienic, cramped, lack proper sanitation and have poor ventilation. Prisoners are not given adequate privacy and are not
given an opportunity to have a semblance of a dignified existence while incarcerated., Considering the state of the crumbling prison
infrastructure, the idea of reformation of a prisoner therefore seems to be a utopian dream.
While it is indeed commendable that the Supreme Court is moving away from the abhorrent death penalty, this alternative
approach, which, like the death penalty, pays scant regard to human dignity, simply cannot be countenanced. Indeed, there is an
urgent need to strike a balance between adequate punishment that facilitates the reformation and rehabilitation of the convict and
the maintenance of human dignity. The Supreme Court simply cannot lose sight of this.
A.S. Vishwajith (B.A, LL.B (Hons) NALSAR University of Law, Hyderabad, India) is a judicial clerk in the High Court of Delhi.

Prisoners Rights
Women in Prison: The Particular Importance of Contact With the Outside World
By Jo Baker | 23rd November 2014

I felt isolated from the entire world. If Id stayed any longer Id have started eating the window bars. Inmate, Jordan
Contact with the world outside of prison is vital to the wellbeing of every detained person but for women this is arguably more
important, and more of a challenge.
Such was a key finding in my research with DIGNITY Danish Institute Against Torture, among womens prisons and prison
communities in five countries, last year. When asked about their greatest hardship or cause for depression, the answers of detained
women repeatedly echoed that of this inmate from the Philippines. The most difficult thing? Leaving my children. I have six. Most
of us are mothers and some of us have been here a long time and our husbands left us while we were here. I worry all the time and
I cant think of anything else. I cant sleep.
For many such women, their need for contact with family and their identities as part of these families are arguably different and
much stronger than those of most men, and the stress of not being able to see or find out about their children is all-consuming, and
hugely harmful. For those who left children in family environments that were abusive, this situation can be particularly dark.
Meanwhile since women tend to have far less access to financial support or earnings, they rely more heavily on outside help for
the basic needs often not met in prison, from nutrition, to baby milk powder and sanitary towels. This affects a range of rights. Our
research suggests that often, for example, the women who are most vulnerable to neglect or exploitation in prison are those who
do not have help on the outside. Keep us in prisons near home so that we can have family support, said one woman in Zambia.
When you dont [have any support] you are prone to abuse or they dont really care about you inside.
Yet women are often less likely to receive visits in prison. This is partly because the stigma of prison can be gendered. Many spoke
of pervasive social shame, and of husbands that quickly leave. When women are in prison it makes a big shame for her family,
an NGO worker told me in Jordan. They may refuse to visit her and cut all relations with her, particularly those women who have
killed. Thus such women, many of whom have been through years of domestic violence, can find themselves completely cut off
from the outside world.
Visiting conditions also play a role. Because womens prisons are usual scarce, relatives may need to travel a greater distance
from their homes, which takes time and money. The mother of one young political prisoner that I met could only afford the three-day
journey each way once a year. Visits can also be cold and traumatic, particularly for children if those children are allowed to visit
at all. While in Jordan this involves 10-15 non-contact minutes behind security glass, in one Zambian prison (where visitors simply
call their news through two wire fences) children are not allowed to visit. A woman may therefore give birth to a child shortly before

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her arrest, and then not be able to hold or see the child again until she is released. This is surely tantamount to inhuman treatment,
for both.
But the good practices found in our study show that there are ways in which prisons can ensure dignity, flexibility and intimacy
during visits and help to hurdle gender barriers too. For example in the Philippines our team found that visitors can spend
substantial, dignified free time with inmates in communal areas of the prison. In Albania, where I drew a number of good practices,
welfare staff try to mediate between female inmates and their estranged families, and arrange visits by detained mothers to their
childrens care homes.
The issue of contact with the outside world is well recognized in international standards, including the Bangkok Rules for women
prisoners. Yet when it comes to a thorough understanding of womens human rights, much more work is required among prison
systems, and even UN treaty body reports, to make sure that this understanding is grounded in the realities of the women
themselves. It is time for all of us to become champions for the human rights of this long-neglected group.
Jo Baker is a writer and research consultant, with a focus on human rights and gender. She most recently led and produced a fivecountry research study for DIGNITY - Danish Institute Against Torture (formerly RCT) on conditions for women in detention, which
was launched at the Human Rights Council in June 2014. www.jobakeronline.com

Prisoner Rights at the Forefront of Canadian Debates


By Ravi Amarnath | 30th January 2015

Over the past month, two major developments have placed the constitutionally protected rights of prisoners front and centre in the
Canadian press.

The first of these developments is at the heart of two lawsuits initiated in the Canadian provinces of British Columbia and
Ontario, challenging the constitutionality of the Correctional Service Canadas (CSC) practice of subjecting prisoners to solitary
confinement.
The practice is defined as the physical and social isolation of a person for 22-24 hours per day, regardless of the intended purpose.
According to the British Columbia Civil Liberties Association, one of the organizations involved in the legal proceedings, one in four
prisoners have spent time in solitary confinement.
Both lawsuits seek to ban the practice in Canada on the basis that it violates numerous rights under the Canadian Charter of Rights
and Freedoms. In particular, the petitioners in both suits assert that the practice violates the rights of prisoners to be free from cruel
and unusual punishment. To succeed on this front, the petitioners will have to convince their respective courts that the practice of
solitary confinement is so excessive as to outrage standards of decency.
The practice of solitary confinement gained notoriety in Canada in 2007 after 19-year-old prisoner Ashley Smith took her life

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while in isolation. Three years later, federal prisoner Edward Snowshoe committed suicide after spending 162 consecutive days
segregated from his fellow inmates.
In the weeks leading up to the lawsuits, former Supreme Court of Canada justice Louise Arbour labelled CSCs use of solitary
confinement as an addiction and opined that judges should review any use of segregation extending beyond three days.
While prisoner conditioners are being challenged in court, the release of prisoners forms the second major development, soon to be
debated in Canadas Parliament.
On Monday, members of the Conservative Party indicated that the federal government plans to bring forth legislation which will
remove the opportunity of release from prison for some individuals convicted of committing certain forms of murder. Last year,
Canada recorded its lowest homicide rate in nearly 50 years.
Canadian Parliamentarians will soon, then, have to grapple with an everlasting issue in the criminal justice system: can the state
permanently restrict a persons liberty for committing a heinous crime?
Under current Canadian law, individuals convicted of second-degree murder may apply for parole after serving between 10 to 25
years of their sentence, while those convicted of first-degree murder may only apply after 25 years.
If the proposed legislation is passed, Canada would join the United States and the United Kingdom in permitting indefinite detention
for prisoners. While in the United States the practice has continued largely without challenge since being deemed constitutional
by the United States Supreme Court in the case of Schick v. Reed 419 U.S. 256 (1974), it has been scrutinized more closely in
Europe.
Schedule 21 of the of the Criminal Justice Act 2003 permits judges to make the starting point for reviewing sentences of
exceptionally high seriousness as the life of the order, foregoing any possibly of parole. In 2013, the Grand Chamber of the
European Court of Human Right in Vinter and Others v UK [2013] ECHR 66069/09 that these orders violated Article 3 of the
European Convention of Human Rights, which prohibits inhuman or degrading treatment or punishment.
Critics of the proposed changes in Canada consider them to be an unwarranted deprivation of prisoners rights to life and liberty
which lack any substantive foundation.
The proposed changes come in the wake of the erosion of rights for individuals convicted of first and second degree murder. In
2011, the federal government abolished the faint hope clause in Canadas Criminal Code, which allowed individuals convicted
of second and first-degree murder to apply for earlier parole eligibility after serving 15 years of their sentence. The provision was
thought to provide prisoners serving indefinite sentences with some hope of release, thereby promoting rehabilitation.
Parole decisions are made by the Parole Board of Canada, an independent administrative agency.
Ravi Amarnath was born and raised in Fort Saskatchewan, Alberta (Canada). He is a graduate student in law at the University of
Oxford.

Restricting Receipt of Rehabilitative Resources: The Prisoner Book Ban


By Natasha Holcroft-Emmess | 28th March 2014

New prison service rules prohibit prisoners in England and Wales from receiving books and essentials from the outside world. The
imposition of a sweeping restriction on family and friends sending such items to their loved ones behind bars is an inordinately
oppressive measure. The blanket ban constitutes a disproportionate interference with prisoners rights as it unduly impedes access
to education and rehabilitative resources.
The new rules, which came into effect in November 2013, amended the Incentives and Earned Privileges Scheme (Prison Service
Instruction (PSI) 30/2013). They curtail prisoners rights to receive commodities from family and friends. Representatives of the
Howard League for Penal Reform have expressed serious concerns about the scope of the provisions and their rational connection
to legitimate penological policy.
Prisoners may only receive parcels in exceptional circumstances at the discretion of the prison governor. Exceptional
circumstances are narrowly defined along the lines of articles necessary to assist with disability or health and artefacts for
religious observance. The sending of birthday presents, underwear and clothing is included in the ban and there is evidence that
these restrictions will disproportionately affect female prisoners, who depend on family for additional clothing. But the greatest
consternation has been expressed at the prohibition on sending books.

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Books are a hugely important resource for prisoners. They provide the means through which prisoners can learn the skills
necessary to live within the law outside of prison walls. Access to books promotes literacy and comprehension. Depending on the
subject matter, reading also facilitates the development of compassion, social skills and greater societal awareness. These are
abilities which many of us take for granted. But for those apparently stuck in a life of crime, they can provide a lifeline to a more
peaceful existence.
Rehabilitation is an important objective of, and justification for, incarceration. This has been recognised both nationally and
internationally. Prisoners need access to the resources in prison that will prepare them for reintegration into society on release. That
is why it is important not to impede prisoners access to these valuable resources.
Justice Secretary Chris Grayling has attempted to justify the new measures. He argues that prisoners have prison libraries at their
disposal, so access to books is not being restricted. Yet in the current age of austerity, library provision in public institutions is far
from a priority. He states that employed prisoners are free to purchase books for themselves if they wish. But for many, the cost of
one book would be a full weeks wages. The new approach as a whole sits ill at ease with the governments professed commitment
to encouraging prisoners to read.
If the concern behind the new rules is to prevent contraband from entering prisons undetected, the answer is to instigate better
checking procedures before sent items are allowed into prisons. The answer is not to prohibit items from being sent in altogether.
Grayling tries to argue that the policy is part of his rehabilitation revolution. Of course it is necessary to have a system incentivising
good behaviour in prisons. But imposing a blanket ban on sending books and essential items is not a proportionate way to achieve
this. It is entirely unclear how this encourages rehabilitation. If an important aim of the criminal justice system is to provide prisoners
with the tools they need to re-enter society, then surely limiting access to educational tools and necessities is pernicious to this aim.
Natasha Holcroft-Emmess a London-based solicitor. She completed the BCL with distinction and is a frequent contributor to the
Oxford Human Rights Hub Blog.

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Introduction Fiona de Londras


Counter Terrorism

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Independent Review of Terrorism Laws: a Brief Introduction

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Accounting for Rights in EU Counter-Terrorism

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Anti-Terrorism Review Reform: Some Considerations

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The UN Sanctions Regime Against Terrorists: Suggested Changes

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UN Sanctions: Possible Changes?

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Partially Clandestine Criminal Trials Risk Standardising Secrecy


Mass Surveillance

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Managing Secrecy: R (Miranda) v SSHD

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The Legality of Mass Surveillance Operations

100

The Supreme Court of Canada Affirms Privacy as Anonymity

101

CJEU Holds the Data Retention Directive Invalid

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One May Not Retain Personal Data Forever: The Judgment in Google Spain

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Will Australia Learn from the EUs Mistakes on Data Retention?

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Respect for Private Life under Article 8 and Covert Filming Sderman v Sweden
Conflict

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Human Rights and the Arms Trade Treaty

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Classic Human Rights Law Territory: Why the HRC Need to Talk about Drones

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Iraq Needs Incisive Measures from the UN Security Council

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Dignifying the Most Vulnerable In and Through Security Council Resolution 2139

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Introduction

By Fiona de Londras
Over the past year, contributors to the Oxford Human Rights Hub Blog have addressed both direct (e.g. physical and political
impacts on victims) and indirect (e.g. on institutional design, use of weaponry and development of international standards) impacts
of insecurity from a rights perspective.
Accountability is key to ensuring the security state does not infringe on human rights beyond what is necessary and justifiable,
however structures of accountability in the counter-terrorist context may not look the same as in other contexts. This is largely
because security requires secrecy, and accountability in the face of secrecy requires innovation. The UK innovated in this field by
establishing the Independent Reviewer of Terrorism Legislation (IRTL), a post now held by David Anderson QC. Writing in March
2014 (Independent Review of Terrorism Laws: a Brief Introduction p 92), Anderson acknowledged the challenges of securing
public faith in a review, much of the information and reasoning underlying which cannot be disclosed. The key, he argued, was
independence. However, in the summer of 2014 the UK government proposed abolishing this office and replacing it with a Privacy
and Civil Liberties Board. Jessie Blackbourn expressed concerns about this on the blog in August (Anti-Terrorism Review Reform:
Some Considerations p 93): how would the panel be appointed? How would it achieve and maintain independence? In the end,
the Government decided against abolishing the IRTL and Anderson continues in the role, however other systems have no such
office or process. Writing in June 2014, I argued that the EU should introduce ex post facto review in order to better understand the
impact of these measures (Accounting for Rights in EU Counter-Terrorism p 93).
In January 2014, Michele Porcelluzzi drew readers attention to the deficiencies in UN sanctions regimes from a due process
perspective (The UN Sanctions Regime Against Terrorists: Suggested Changes p 94). His novel suggestion is that listing and
delisting be taken out of the Security Council and done by the International Criminal Court, where fair trial rights could be
respected in a manner that recognised the criminal justice nature of the sanctions regime. This is a suggestion that might be taken
on board by the Working Groups of the High Level Sanctions Review, which he outlined in a second contribution (UN Sanctions:
Possible Changes? p 96).
Domestic security measures continued to cause anxiety. Natasha Holcroft-Emmess wrote on Guardian News and Media Ltd v
AB & CD [2014] EWCA Crim (B1) where the Court of Appeal acceded to a government request to have a case heard in camera,
but mandated that some parts should be open (swearing in, reading the charges, the prosecutions opening, the verdicts and
sentencing), and permitted a small number of journalists to be present, although they could not report until the trial was concluded
(Partly Clandestine Criminal Trials Risks Standardising Secrecy p 97). Holcroft-Emmess acknowledged that the Court had to tread
a fine line between open administration of justice and protection of sensitive information, but this post highlighted the sharpness of
this tension. This sharpness results, not least, from concerns that secrecy may frustrate transparency as well as protect security;
a concern I addressed in a post on the Miranda [2014] EWHC 255 (Admin) case (Managing Secrecy: R (Miranda) v SSHD p 98).
That case, I argued, highlighted the importance of introducing structures to manage secrecy; indeed, that is what Nicol J. was
attempting to do in Guardian News and Media Ltd v AB & CD [2014] EWCA Crim (B1).
Closely allied to concerns about secrecy are concerns about privacy, which were prominent in contributions last year. Andrew
Wheelhouse wrote on the important decision of the Investigatory Powers Tribunal that Tempora was ECHR-compliant (The
Legality of Mass Surveillance Operations p 99). Echoing other posts, Wheelhouse raised the challenges of public faith for a system
that assesses rights-compliance in largely or wholly closed processes. If Anderson argued that independence is key to maintaining
the legitimacy of his role as IRTL, can a Tribunal of this nature claim the same independence? That it can is not at all clear.
However, a number of courts did hand down important decisions on privacy, surveillance and the Internet that were analysed on
the blog. The Court of Justice of the European Unions (CJEU) decisions on the Data Retention Directive and right to be forgotten
were analysed by Menelaos Markakis (One May Not Retain Personal Data Forever: The Judgment in Google Spain p 102), who
rightly noted the Courts endorsement of a level of judicial scrutiny that could have hardly been more searching, wide territorial
scope for EU data protection, and very protective approach to the rights to privacy and protection of personal data. Sinziana Gutiu
reflected on the Supreme Court of Canadas decision in R v Spencer [2014] 2 S.C.R. 212 (The Supreme Court of Canada Affirms
Privacy as Anonymity p 100), finding that privacy can exist as secrecy, as control, and crucially as anonymity. Internet users,
the Court held, have a reasonable expectation of privacy as anonymity. Melina Padron (Respect for Private Life under Article 8 and
Covert Filming p 104) brought to readers attention the European Court of Human Rights decision in Sderman v Sweden [2013]
ECHR 1128 in which the Grand Chamber held member states have an obligation to put in place adequate civil and/or criminal
provisions to protect individual Article 8 rights, including the right to privacy. In spite of these decisions across various jurisdictions,
mass surveillance continued apace; both Australia and the UK introduced data retention legislation, seemingly at odds with the
strong form of privacy protection endorsed in particular by the CJEU.
Beyond the context of counter-terrorism and surveillance, the blog also covered important developments in security and rights.
Kate Stone marked the entry into force of the Arms Trade Treaty (Human Rights and the Arms Trade Treaty p 106), which requires
states to consider the likely human rights consequences of arms trades in advance. Stone raises the important question of whether
rights can be effectively protected by regulating, rather than preventing, arms trade, but this may be a field in which pragmatism

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holds significant promise. While tackling trade in conventional arms, the international community is also faced with a less
conventional form of weaponry: drones. In October 2014, Natalie Cargill welcomed the decision of the Human Rights Committee
to address this issue head-on (HRCR 25/22), which offered the opportunity to reiterate the applicability of IHL and IHRL to the
use of drones, although the Resolution attracted criticism from some states (Classic Human Rights Law Territory: Why the HRC
Needs to Talk About Drones p 107). Addressing the use of force against ISIS, Michele Porcelluzzi argued (Iraq Needs Incisive
Measures from the UN Security Council p 108) that international action, mandated by a Security Council Resolution, was needed
in respect of Northern Iraq. However, Security Council Resolutions are useful not only for mandating military intervention, but also
for recognising what Sarah Field calls our shared vulnerability to hurt and harm of unimaginable form and depth, referring to SCR
2139 in Syria (Dignifying the Most Vulnerable In and Through Security Council Resolution 2139 p 109).
What these contributions to the OxHRH Blog over the past year show is that, while the particularities of debates on security and
rights might change with context review, sanctions, arms trading, secrecy, drones etcthe themes with which we are preoccupied
are relatively stable. Efforts to ensure security almost necessarily confound us. On the one hand, security is required for the
enjoyment of human rights: we know that situations of insecurity, instability, and the quotidian nature of inter-personal violence
severely challenge our capacity to enjoy, and states capacities to ensure, rights. However, the measures taken in the effort to
ensure security themselves pose serous threats to rights. Thus, as the contributions to the blog show, the work of the human
rights lawyer and advocate is to critically engage with efforts to understand, provide, and review security in order to minimise the
challenging tensions that arise.
Prof Fiona de Londras is Professor of Law and Co-Director of the Durham Human Rights Centre at the University of Durham where
she coordinates the FP7-funded, collaborative project SECILE. She has spent the 2014-2015 academic year as a Visiting Fellow at
Oxford Human Rights Hub.

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Counter Terrorism
Independent Review of Terrorism Laws: a Brief Introduction
By David Anderson | 6th March 2014

Monitoring the activities of the secret state creates a conundrum. To be effective, a monitor needs to read and to know what is
secret. But why should the monitor be believed, when the monitors reasoning cannot be shared with the public?

That conundrum is most familiar in the context of intelligence oversight, where the Shadow Home Secretary has recently made
some interesting proposals for change. But as she indicated, part of the solution may lie in an older tradition: the independent
review of the operation (by police, prosecutors, Ministers and others) of the anti-terrorism laws. Such review has been a feature of
the landscape in the UK since 1978 and was adopted in Australia in 2010.
Independent review of terrorism legislation is founded, perhaps quaintly, on trust: the appointment of what was described to
Parliament in 1984 as a person whose reputation would lend authority to his conclusions, because some of the information that led
him to his conclusions would not be published.
A second important feature evolved during the tenure of Lord Carlile Q.C., from 2001-2011, as what the Shadow Home Secretary
described as a public-facing form of oversight. However penetrating a review may be, it can neither inform, reassure nor raise
the alarm, unless its conclusions are brought, forcibly if necessary, to the attention of Parliament and the general public. This
means meeting with the widest possible range of people, giving evidence to Select Committees and accepting a degree of media
exposure.
Neither of these features would be worth anything without genuine independence. The Independent Reviewer must set out neither
to torment the Government nor to defend it, but to give an informed and considered view. Though not a judge, he or she must
always seek to act (in the words of the judicial oath) without fear or favour, affection or ill-will. Successive Reviewers, each of whom
has performed the job on a part-time basis and without hope of advancement from Government, have, in my (perhaps not entirely
impartial) opinion, been well-endowed with this quality.
As the current Independent Reviewer of Terrorism Legislation, I have sought to explain the history and functions of the post in a
working paper, delivered as a lecture to the Statute Law Society on 24 February 2014. I have also traced some of the ways in
which the post may affect the decisions made by Government. Topical case studies demonstrate how it may do so both directly and
in conjunction with other channels of influence including, most importantly, Parliament and the courts.
David Anderson QC is the Independent Reviewer of Terrorism Legislation and a barrister at Brick Court Chambers.

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Accounting for Rights in EU Counter-Terrorism


By Fiona de Londras | 7th June 2014

In the 12 years after 9/11, the EU introduced 239 counter-terrorist measures, 88 of which were legally binding. In the EU, as
elsewhere, designing and implementing counter-terrorism carries with it risks for rights.
While a baseline of security is required in order to enjoy rights per se, countering terrorism often infringes on the rights of
suspected terrorists and, more broadly, undermines social cohesion and the rule of law. For that reason, it is important that we pay
proper attention to rights in the making, implementation and review of counter-terrorism laws and policies.
In spite of this, the pre-legislative process in the European Union Constitutional Treaty (EUCT) is problematic from a rights-based
perspective, even where the formal ex ante impact assessment process is employed. This process, undertaken by the Commission,
engages with stakeholders to predict the environmental, economic and social impacts of proposed measures and provide an
evidence-base for political decision-making.
Social impacts include impacts on rights. Understandably, however, the qualitative analysis of rights impact is not easily assessed
alongside the quantitative analysis of economic impact, with more concrete data often appearing to receive more analytical weight.
Thus, it is not unusual when reading these assessments to notice that the analysis of rights is light touch.
This might be expected, given that forward-looking analyses are speculative, especially in relation to values that are difficult to
quantify. But it points toward a need to afford more weight to rights in these assessments, especially as they can also shape later
analyses of the effectiveness of measures where such ex post assessment takes place.
We can only ascertain a measures actual impact once it is operational. Even at that point, it is important to remember that the
impact of EUCT will not be uniform across every member state or social group: the vast majority of implementation is national, and
there can be significant variations across the member states.
In spite of this, formal ex post facto review of EU counter-terrorism is remarkably infrequent, even where the measure in question
expressly requires it. Of the 88 legally binding minding measures introduced since 2001, 68 required review, only 33 of which have
so far taken place on time (ten have not reached their time limit).
The lack of effective and regular ex post facto review of EUCT is highly problematic from a rights-based perspective. The necessity
and proportionality of any measure may vary according to changing security and social circumstances and thus requires regular
review. Without this, we must rely on the hope that a court will have the opportunity to judicially review a measure to assess
its legality, in which assessment is only part of a comprehensive rights-related understanding of the impact of counter-terrorist
measures.
The EU is a relative newcomer to counter-terrorism, and although it takes some account of rights, this is not sufficient to ensure
EUCT is as rights-compliant as possible. The EU does have the potential to account more fully for rights in its counter-terrorism, in
particular by enhancing participation in the life cycle of counter-terrorist law- and policy-making and instigating regular, participatory
and evaluative review.
Fiona de Londras is Professor of Law and Co-Director of the Durham Human Rights Centre at the University of Durham where she
coordinates the FP7-funded, collaborative project SECILE. She has spent the 2014-2015 academic year as a Visiting Fellow at
Oxford Human Rights Hub.

Anti-Terrorism Review Reform: Some Considerations


By Jessie Blackbourn | 8th August 2014

In mid-July, the UK government announced its intention to abolish the Independent Reviewer of Terrorism Legislation the office
tasked to review the UKs anti-terrorism laws and replace it with a new Privacy and Civil Liberties Board. There is some merit
in this proposed reform. A panel of reviewers could mitigate some of the problems in the existing system of review. The current
Independent Reviewer, David Anderson QC, is, for example, overburdened with the number of laws he is tasked as an individual
to review. However, if the Privacy and Civil Liberties Board is to improve on these deficiencies, it must be established according to
best practices in government oversight.
The government has not yet outlined the structure of the new Board. This is something to which it must give serious consideration.
A panel of reviewers presents a number of problems not found in the current system. How many people will sit on the Board? Will

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each member have equal weight? What will be the process if the Board cannot agree? Can individual members write dissenting
reports? Recommendations reached by consensus could mean compromise and a decline in the quality of the review. However,
a system in which the publication of multiple opinions is allowed could have the same result; indecision will offer scope for the
government to adopt the reforms it prefers, rather than the ones that may be most necessary.
The government will also need to consider how it appoints the Board. Anderson was appointed by the Home Secretary in a process
which he has described as intriguing, if indefensible. Since then, he has succeeded in making the appointment process more
transparent. Future Independent Reviewers were to be chosen by Ministers in an open, fair and merit-based process from a list
of appointable candidates. This should be the minimum appointment procedure for members of the new Board. A more preferable
process would be to advertise the position in an open competition. The government also needs to think about the length of term
and re-appointment procedures. The Independent Reviewer is appointed for three years, renewable up to a period of ten years.
Three years is a very short period of time for new appointees to get aboard such a complex area of law. The government might
instead give consideration to establishing a system of rolling appointments for non-renewable five-year periods.
The government will then need to consider the Boards terms of reference. As it stands, the Board will be required to advise the
government on whether anti-terrorism legislation is sufficient to meet the threat and adequately takes account of privacy and liberty
concerns. Given recent revelations about the extent to which government agencies have infringed citizens right to privacy, it is
perhaps understandable that this has been prioritised. However, some of the UKs anti-terrorism laws, such as those that impose
Terrorism Prevention and Investigation Measures on persons only suspected (but not convicted) of terrorist behaviours, pose a far
greater challenge to other traditional rights.
The government will also need to think about what powers the Board will require. In order to be meaningful, a review must have
full access to all relevant information. The Independent Reviewer currently has no statutory power to access material from the
intelligence and security services or the government; however, according to Anderson, it has been granted on trust, based on the
establishment of strong relationships between the reviewer and those agencies. Anderson has suggested that for the same access
to be granted to the Board, it will need to be backed both by watertight statutory guarantees and by the full institutional cooperation
of agencies.
Finally, the government needs to consider the Boards reporting requirements. Currently, the government must table the
Independent Reviewers reports to the parliament on receipt. The government may delay publication of the reports for only enough
time to ensure that they contain no information which, if disclosed, might prejudice national security. Whilst disclosure is a legitimate
concern, the procedure for determining national security information must be transparent. The government should not have final
censorship over the new Boards reports. Additionally, the government should be required to provide an official response to the
Board, particularly where laws are not subject to annual renewal and parliamentary debate.
These are just some of the factors that will need to be considered when the government proposes its new Privacy and Civil
Liberties Board. Otherwise, we will be worse off than the current system of independent review.
Dr Jessie Blackbourn a Lecturer in Politics and Human Rights at Kingston University.

The UN Sanctions Regime Against Terrorists: Suggested Changes


By Michele Porcelluzzi | 15th January 2014

The current UN sanctions regime against terrorists does not secure due process rights. Allowing the International Criminal Court to
deal with these cases would be a preferable solution, as it would prevent violations of such rights.
Overview
Two years before the 9/11 attacks, the UN Security Council adopted Resolution Resolution 1267 (1999), establishing a sanctions
regime which required all states to impose a range of preventive measures, including asset freezing, international travel bans and
arms embargoes on individuals and entities designated by the Sanctions Committee as being associated with the Taliban.
In the following years, with numerous Security Council resolutions, these measures were extended to individuals, groups and
entities associated with Al-Qaeda, and there developed an Al-Qaeda Sanctions List. Further, the Security Council established
guidelines for blacklisting and delisting.
Any state may request the Al-Qaeda Sanctions Committee to add names to the Al-Qaeda Sanctions List. The Committee oversees
states implementation of the sanctions measures, maintains the sanction list and considers submissions from states concerning
exemptions to asset freezing and travel bans. It makes decisions on listing by consensus of its Members. If consensus cannot be

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reached, the matter may be submitted to the Security Council by the member concerned. Finally, a listed person or entity receives
a narrative summary of the reason of the listing, which does not include any information that the designating state considers
sensitive.

Problems
The sanctions significantly interfere with the fundamental right to freedom of movement, property rights and the right to privacy in
all its manifestations. Further, the duration of the sanctions is not determined, so in most cases, it is permanent. The procedure is
also entirely political, lacking any judicial control. The Committee is composed of diplomats, rather than independent judges. An
individual is not allowed to intervene in the proceedings to prove his innocence and often receives an unduly narrow summary of
the decision. There are clear violations of the fair trial rights set up by article 14 ICCPR, which depend on the independence of a
decision-maker, accessibility and power to grant an effective remedy.
Due to criticism from many commentators, NGOs and UN Member States, in 2009 the Security Council introduced an independent
Ombudsperson to assist the Committee in its consideration of delisting requests. The Ombudsperson investigates delisting
requests and prepares a comprehensive report. This report contains formal recommendations to the Committee on whether to
accept or reject a delisting request. If the Ombudsperson recommends against retaining a listing, then that individual or entity is
delisted within 60 days, unless the Committee decides unanimously to retain it, or the question is referred to the Security Council.
The Special Rapporteur, in his 2012 report, concluded that the Al-Qaeda sanctions regime continues to fall short of international
minimum standards of due process. He suggested extending the powers of the Ombudsperson, whose decision must be accepted
as final by the Al-Qaeda Sanctions Committee and the Security Council.
Solutions
In order to uphold due process rights, the best solution would be to bring the listing and delisting procedures within the jurisdiction
of the International Criminal Court. This would ensure that decisions are made by independent judges on the basis of clear norms,
which would set the standard for cooperation with Al-Qaeda. Further, individuals would be able to intervene in both procedures and
challenge the evidence put forward by the states. The Court would also provide a clear and complete reason for its decision in each
case. Respecting due process rights would also facilitate the implementation of sanctions in the EU. The ECJ would not itself need
to undertake a complete review such in the Kadi II [2013] EUECJ C-584/10 case, as long as the ICC maintained this elevated
standard of protection.
Respecting human rights is a necessary condition for fighting terrorism, as violations of these rights will only create an atmosphere
of resentment. The existing regime does not respect human rights to the required extent. However, the suggested amendments
could hopefully facilitate their protection.
Michele M. Porcelluzzi completed his M.Sc. in Law at Bocconi University in 2010. His research interests include International Public
Law, International Humanitarian Law, Human Rights Law and National Security Law.

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UN Sanctions: Possible Changes?


By Michele Porcelluzzi | 24th July 2014

In the last 20 years, the UN Security Council has adopted numerous sanctions not involving the use of armed force.
Originally, these sanctions only targeted States and aimed to prevent or punish cross-border attacks, civil wars and terrorism.
They have since narrowed to target specific entities or individuals, and the rationale for sanctions has expanded to include the
protection of civilians and prevention of human rights atrocities, the discontinuation of the development of unconventional arms and
their delivery systems, and the financing conflict through exploitation of natural resources or criminal activities. For example, the
Sudanese sanctions regime, established by Resolution 1591 (2005), imposed measures including travel bans and asset freezing
on individuals designated by the Committee.
Today, there are 15 sanctions committees, supported by 65 experts working on 11 monitoring teams, groups and panels, at a cost
of about $32 million dollars a year.
There are, however, several problems with the existing sanctions regime. First, some sanctions regimes targeting individuals,
such as those against terrorists, do not secure due process and human rights. Furthermore, in order to assure effectiveness, it
is necessary to develop strategic partnerships with other control mechanisms or regulatory systems. At the moment, the United
Nations cooperates with the International Civil Aviation Organization, the International Maritime Organization, INTERPOL and the
World Customs Organization. However, there is a notable absence of collaboration between UN sanctions committees and financial
and arms embargo regulatory organs, like those established by the European Union or Organization for Security and Co-operation
in Europe.

Moreover, new crisis resolution tools dealing with many of these same threats have been developed; these include mediators,
international tribunals and sanctions by entities other than the UN. It would therefore be desirable for UN sanctions to be integrated
with these new tools in order to become an integral part of a larger strategy.
In June 2013, a High Level sanctions review was initiated, sponsored by the UN Missions of Australia, Finland, Greece and
Sweden, in combination with Brown University and the sanctions consulting firm CCI. A similar activity took place in 2006, with the
Informal Working Group on General Issues of Sanctions, which resulted in important policy documents for sanctions regimes.
The current sanctions review is being conducted by sanctions practitioners with extensive experience in the service of their
Governments, the Secretariat, international organizations or current and former sanctions monitors. Three Working Groups are
addressing different issues.

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The first group is dealing with integration and coordination on the implementation of UN sanctions. In particular, it is focusing
its attention on opportunities to improve sanctions integration and coordination among the UN entities supporting the Councils
sanctions function, including sanctions committees, expert groups, the Ombudsperson and the Secretariat.
The second Working Group is addressing the possible partnerships and strategies between the UN sanctions regime and other
international instruments and institutions dealing with international security, such as international arms control and disarmament
mechanisms, international financial and economic regulatory systems and international criminal justice institutions.
The Third Working Group is focusing its attention on UN sanctions, regional organizations and emerging challenges. In particular, it
is addressing opportunities to optimize UN sanctions as an effective tool in response to serious and systematic violations of human
rights and international humanitarian law, enhancing coordination with regional sanctions and exploring new applications to address
evolving threats to international peace and security.
This review of UN sanctions is indispensable and may be very useful if it is conducted periodically, for example, every five years.
However, there are two obstacles, which Working Groups may face. First, the operations of the UN sanctions regime and the
International Criminal Court often overlap. More coordination between these bodies may therefore be required.
Secondly, the Working Groups need to address the perceived lack of respect for due process rights by the UN sanctions regime.
The European Court of Human Rights in Nada and the European Court of Justice in Kadi, as well as some domestic courts, have
challenged the regime against terrorists on due process grounds.
Despite these problems, it is hoped that the Working Groups, whose activity will conclude in October 2014, will nonetheless provide
a useful and meaningful review of existing sanctions regimes.
Michele M. Porcelluzzi completed his M.Sc. in Law at Bocconi University in 2010. His research interests include International Public
Law, International Humanitarian Law, Human Rights Law and National Security Law.

Partially Clandestine Criminal Trials Risk Standardising Secrecy


By Natasha Holcroft-Emmess | 15th June 2014

In the case of Guardian v AB and CD [2014] EWCA Crim (B1), handed down 4 June 2014, the UK Court of Appeal addressed the
issue of secrecy in criminal trials on the grounds of national security.
UK Government Ministers requested that a criminal trial be conducted entirely behind closed doors and that the defendants be
anonymised. The trial judge acquiesced to the request, but the Court of Appeal overturned this in part. It is submitted that the
decision does go some way to preserving the interest in the public administration of justice, but some unease remains, and courts
ought to be apprehensive of accepting any in-roads into open justice.
Two defendants are facing multiple criminal charges of (mostly inchoate) terrorism offences. On 19 May 2014, the trial judge, Nicol
J, ruled that the entirety of the criminal trial could take place in camera (i.e. in private, to the exclusion of the public and the media)
and that the defendants identities could be withheld from publication.
The prosecution adduced ministerially-endorsed Certificates setting out reasons in favour of conducting the criminal trials in secret.
The justification centred upon preservation of national security. Various representatives of the media appealed the trial judges
decision to permit the trial to go ahead completely in camera and to censor any publication of the names of the accused.
The Court of Appeal decided that the evidence available to it indicated a significant risk that the administration of justice would be
frustrated if the trial were conducted in open court. As a result, the core of the trial could be held in camera. However, some parts of
the trial could be conducted in open court, namely: swearing in of the jury, reading of the charges, the judges introductory remarks,
the prosecutions opening, the verdicts and (if applicable) sentencing.
The Court of Appeal also decided that a small number of accredited journalists could attend the bulk of the trial (subject to exclusion
from discussion of some matters in accordance with the Certificates) on terms of confidentiality until a review at conclusion of the
trial.
On the other hand, the Court of Appeal could not countenance conducting part of the trial in secret and anonymising the
defendants. The defendants could therefore be named as Erol Incedal and Mounir Rarmoul-Bouhadjar. The reasons for this will be
substantiated in forthcoming judgments. An early indication of the courts approach appears in the introduction, which describes the

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Rule of Law as a priceless asset and foundation of the UKs Constitution. One aspect of the Rule of Law is open justice: trials being
held in public and the names of defendants publishable. This fundamental principle of the common law ensures public confidence
in the legal system. Justice must not only be done but also seen to be done.
The Court of Appeal decision is agreeable in that it emphasises the need for adequate justification for departures from the principle
of open justice. It expressly limits such departures to circumstances of necessity and requires a proportionality analysis to be
undertaken. The courts vigilance concerning the cumulative effects of various in-roads into open justice is encouraging.
But the fundamental tension between the public interest in national security and the public interest in the open administration of
justice remains. The case was described as exceptional, and the need for some secrecy was determined as justified on the facts
of the case. Although it is ultimately for courts to decide whether to give effect to a Certificate advocating secrecy in the interests of
national security, the judges appear to adopt an openly deferential stance to ministerial urging.
It is argued that the courts ought to be especially vigilant of the risks of accepting any intrusions into open justice and fair trial
rights, not just the cumulative effect of many. This is an area in which a quantitative assessment of the impact of multiple incursions,
although to some extent helpful, risks undermining the cause of open justice by permitting several small in-roads and standardising
a certain amount of secrecy.
Natasha Holcroft-Emmess is a London-based solicitor. She completed the BCL with distinction and is a frequent contributor to the
Oxford Human Rights Hub Blog.

Mass Surveillance
Managing Secrecy: R (Miranda) v SSHD
By Fiona de Londras | 19th February 2014

Much has already been written about the implications of R (Miranda) v Secretary of State for the Home Department [2014] EWHC
255 (Admin) for Schedule 7 Terrorism Act 2007. However, leaving that to one side, I want to reflect on the questions about secrecy
that Miranda touches on.
Although some have criticised the judgment for equating investigative journalism with terrorism, Laws LJ held that [t]here is no
suggestion that media reporting on terrorism ought per se to be considered equivalent to assisting terrorists. However, some
disclosures made by journalists might have the effect of aiding or assisting terrorists in evading counter-terrorism. That may be an
unpopular proposition but it is likely correct, and it raises important questions about where the legitimate lines between secrecy and
transparency lie and who gets to decide when they have been crossed.
Secrecy and counter-terrorism go hand in hand. Complete transparency (i.e. disclosure of all activities to the public at large)
when it comes to counter-terrorism is neither practicable nor desirable from a security perspective. That is not to say that absolute
secrecy is necessary or desirable either. Instead, cases like Miranda should cause us to think about secrecy and, as a result,
transparency as a layered phenomenon.
1. Broadly drawn and simplistically described, there are at least four layers of secrecy/transparency that we might think about in
the counter-terrorist context.
2. Public public: elements of counter-terrorism that are publicly known and deliberated upon, such as legislative frameworks.
3. Public political: elements of counter-terrorism that are not subject to full public disclosure but which are disclosed to the public
through the proxy of political actors. Here there is public scrutiny through representative politics but not through full public
deliberation.
4. Private political: there is disclosure to some political actors, but that disclosure is not subjected to political scrutiny within
traditional parliamentary structures. This might include private security briefings and disclosures to relevant ministers.
5. Agency private: where disclosures happen within the relevant agency or agencies, and there is limited or no political
disclosure.
In many cases, all four of these levels coexist. However, in other casessuch as in relation to the disclosures flowing from Edward
Snowdens whistle blowing there is little or no public public or political public information. Instead, the existence and detail of
the counter-terrorist activity in question are almost completely secret. This poses serious democratic and legitimacy concerns that
whistleblowers and journalists try to manage.
In essence, the question that Miranda raises is whether journalistic expression that attempts to manage these secrecy concerns
through disclosure ought to be protected to the extent of being exempted from laws and structures that are designed to protect

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security. Laws LJ was obviously skeptical. At paragraph 58 he wrote, of Greenwalds account of how disclosure decisions are
made:
the reader is left in the dark as to how it is that highly experienced journalists and legal experts are able to know what may
and what may not be published without endangering life or security [T]he journalist may not understand the intrinsic significance
of material in his hands; more particularly, the consequences of revealing this or that fact will depend upon knowledge of the whole
jigsaw (a term used in the course of argument) of disparate pieces of intelligence, to which [journalists] will not have access.
This passage raises legitimate concerns, but it also implicitly emphasises the importance that we ought to attach to constructing
appropriate structures for the management of secrecy. If it is true that journalists even with legal advice cannot fully appreciate
the security implications of disclosing secret counter-terrorist operations and information, then at the very least, we should be
able to expect that we would have transparency under headings 2, 3 and 4 above (i.e. public political, private political and agency
private) in respect of all security activities.
Journalism, which creates public public transparency, may not always have the capabilities to make the kinds of security
judgements necessary to assess whether a particular piece of information ought to be in the public domain, but neither ought we
allow security agencies to monopolise both the information that we use to assess threats and the decisions as to disclosure.
Fiona de Londras is Professor of Law and Co-Director of the Durham Human Rights Centre at the University of Durham where she
coordinates the FP7-funded, collaborative project SECILE. She has spent the 2014-2015 academic year as a Visiting Fellow at
Oxford Human Rights Hub.

The Legality of Mass Surveillance Operations


By Andrew Wheelhouse | 7th February 2015

A court, which isnt a court in name, rules on the legality of a government mass surveillance program that may or may not exist.
That about sums up the Kafkaesque world inhabited by the UKs Investigatory Powers Tribunal in Liberty v GCHQ [2014] UKIPTrib
13_77-H.

This claim arose out of the revelations by former National Security Agency (NSA) contractor Edward Snowden and fell into two
parts: first, that GCHQ (The UKs signals intelligence agency) had unlawfully been supplied information obtained through the
NSAs Prism program; second, that GCHQ had been running its own unlawful mass surveillance program, named Tempora. A
variety of civil liberty NGOs alleged that these activities breached the right to privacy under Article 8 of the European Convention on
Human Rights (ECHR) and collaterally breached the right to freedom of expression under Article 10 (through the chilling effect on
organisations that believe their communications are possibly being monitored).
The British government will neither confirm nor deny the existence of Tempora. The hearing therefore proceeded, somewhat

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bizarrely, on the basis of alleged factual premises for five days, with a one-day closed hearing from which the claimants were
excluded so that the Tribunal could consider material deemed too sensitive to be heard in public.
Surveillance and communications interception in the UK is governed by the Regulation of Investigatory Powers Act (RIPA)
2000. Under s.8(4) RIPA, an interception warrant issued by a Minister is required for public authorities to carry out surveillance.
Information passed to GCHQ by the NSA is governed by a hodgepodge of other statutory provisions.
The Tribunal considered that compliance with the ECHR essentially boiled down to two questions:
Are there publically known rules for the interception of communications whose content is sufficiently indicated?
Are these rules subject to proper oversight?
On the first point they were satisfied that the (classified) arrangements for implementing the statutory framework sufficiently
restricted the potential for abuse of the surveillance system. Although these arrangements were not themselves known, this defect
was remedied by the statutory bodies that oversee the system, namely the Intelligence and Security Committee of Parliament and
the Interception of Communications Commissioner. Their reports are available to the public and indicate enough about the rules
governing interception to ensure the programmes lawfulness.
On the second point, these bodies, combined with the IPT, provide sufficient oversight of the programme to ensure its legality.
Accordingly, GCHQ had, in principle, acted lawfully (or would be, hypothetically). Prism and Tempora take us to the bleeding edge
of intelligence gathering in the information age, and it is highly debatable whether Article 8 permits the gathering of Big Data
for storage in vast databases. This will no doubt be tested in the separate challenge to Tempora currently before the ECtHR in
Strasbourg.
Especially troubling is the use of closed hearings resulting in judgments that do not tell the whole story. British judges may well
rigorously scrutinise the work of the security services, which may well be entirely candid in the evidence they present behind closed
doors. We have no idea. But we note the recent abuse of RIPA by police to hack the phone records of journalists and the tendency
of those tasked with scrutinising the security services to suddenly change their tune when presented with classified information.
The latter point helps explain the muted public reaction to Tempora. Who cares about GCHQ collecting your Whatsapp messages
that they will probably never read when national security is at stake? The public is alarmed by the prospect of lone wolf terrorist
attacks on British soil, particularly if and when disaffected Britons, currently fighting for IS, return. Bluntly speaking, news of Charlie
Hebdo brought crowds out onto the streets. News of Tempora did not.
Secret judicial processes and mass surveillance are an affront to the idea of open justice in a free society. They are also an
indictment of a society that has been unable to culturally confront home-grown Islamic extremism, leaving a vacuum filled by the
authoritarian application of state power. In the aftermath of Charlie Hebdo, this is changing. In the meantime, we will be forced to
endure laws that undermine the very values we claim to fight for.
Andrew Wheelhouse was called to the Bar Of England & Wales at Middle Temple in 2013. Between January and July 2014 he
served as a Foreign Law Clerk to Justices Skweyiya and Madlanga at the Constitutional Court of South Africa. He writes here solely
in a personal capacity.

The Supreme Court of Canada Affirms Privacy as Anonymity


By Sinziana Gutiu | 5th July 2014

This is a critical time for privacy on the Internet. Private entities, from the global, all-knowing Google to a local Internet Service
Provider (ISP), retain sensitive and private information about their users. In Canada, privacy advocates are concerned about Bill
C-13, the Cyberbullying Act and Bill S-4, the Digital Privacy Act, which are currently before Parliament and which can have serious
privacy implications for Canadians. The Supreme Court of Canadas landmark decision in R v. Spencer 2014 SCC 43, which affirms
anonymity as a key component of the right to privacy, comes at a much-needed time.
Mr. Spencer accessed and stored child pornography by way of the free peer-to-peer file-sharing program LimeWire. By using
publicly available software, the Saskatoon Police Service was able to obtain the Internet Protocol address of the computer but
needed more information in order to identify the individual user. Police investigators made a written law enforcement request for
the subscriber information pursuant to s.7(3)(c.1)(ii) of the Canadian Personal Information Protection and Electronic Documents
Act (PIPEDA) to Shaw (the ISP), who complied with the request and released the name, address and telephone number of the
customer using the IP address. The police used this information to obtain a search warrant, search Mr. Spencers home and seize
his computer, which contained hundreds of child pornography images.

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The Supreme Court of Canada was faced with a number of questions, including whether, in the circumstances, the police conduct
violated Mr. Spencers s.8 Charter right to privacy.
The Court looked at the subject mater of the search, the nature of the privacy interest triggered by the search, and whether
Mr. Spencer had a reasonable expectation of privacy in the personal information disclosed by Shaw. The Court found that Mr.
Spencers name, address and telephone number did not simply provide the information of someone who had a contractual
relationship with Shaw, but rather, linked information about the identity of an internet subscriber to a particular internet usage, which
could reveal intimate details of the lifestyle and personal choices of an individual.
In assessing the nature of the privacy interest, the Court recognized three understandings of informational privacy: privacy as
secrecy (e.g. confidentiality of medical information provided by patients), privacy as control (the ability to choose what happens with
ones personal information), and privacy as anonymity (where information provided can be disseminated, but without disclosing the
identity of its source).
Deciding whether Mr. Spencer had a reasonable expectation of privacy required the Court to look at the provisions of PIPEDA, the
federal legislation that creates a general prohibition on the disclosure of personal information without consent. Section 7(3)(c.1)(ii)
contains an exception to the requirement for consent when a government institution, for the purpose of law enforcement, makes a
request that identifies its lawful authority to obtain the information.
The Court found that it is reasonable for an internet user to expect that a simple request by police would not amount to lawful
authority, would not trigger an obligation to disclose personal information and would not defeat PIPEDAs general prohibition on the
disclosure of personal information without consent. The requirement for lawful authority meant that the police could ask Shaw for
information but, without a warrant, had no legal authority to compel Shaw to comply with their request.
In conclusion, the Court determined that the police conduct amounted to a search, triggering Mr. Spencers s.8 Charter right
to privacy and that the search was conducted without lawful authority, but the evidence of the electronic files containing child
pornography could not be excluded from the record because of the serious nature of Mr. Spencers crime, and excluding the
evidence would undermine societal interests and put the administration of justice into disrepute.
The decision is a victory for privacy rights. It confirms that Internet users have a reasonable expectation of privacy in their online
activities and that anonymity is a critical component of informational privacy. It also clarifies that where privacy statutes require
lawful authority, organizations are empowered to deny warrantless investigative requests and prioritize their customers privacy
interests. In an increasingly public internet space, the decision affirms that individuals have the right to preserve their freedom from
identification and surveillance.
Sinziana Gutiu is a litigation associate in the Vancouver office of Dentons Canada LLP.

CJEU Holds the Data Retention Directive Invalid


By Menelaos Markakis | 14th April 2014

In joined cases C-293/12 and C-594/12, the Court of Justice of the European Union ruled that Directive 2006/24/EC on the
retention of data by service providers for the purposes of investigating, detecting and prosecuting serious crime was invalid.

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There was a disproportionate interference with the right to respect for private life and with the right to the protection of personal
data, enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union respectively.
Based on Article 114 TFEU, Directive 2006/24 lays down an obligation on providers of publicly available electronic communications
services or of public communications networks to retain certain data generated or processed by them to make it available for
the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. This Directive
applies to all traffic and location data and to related data necessary to identify the subscriber or registered user. Member states
had to ensure that service providers retained data concerning fixed network telephones, mobile telephones, Internet access,
Internet e-mail and Internet telephones, which are necessary to identify the source, destination, date, time, duration and type
of communication, as well as the users communication equipment and its location, for up to two years. This data could only be
provided to the competent national authorities in accordance with the procedures and conditions laid down by national law.
Having established that there was an interference with Articles 7 and 8 of the Charter (paras. 32-37) and that that interference
satisfied an objective of general interest insofar as it contribute[s] to the fight against serious crime (paras. 41-44), the Court turned
its attention to the thorny issue of whether the interference was proportionate. In view of the nature of the rights at issue and the
extent and seriousness of the interference with those rights, the Court held that the EU legislatures discretion is reduced, with the
result that review of that discretion should be strict (paras. 47-48).
The Court noted, first, that the Directive covered all traffic data concerning all means of electronic communication and all
subscribers and registered users, thereby entailing an interference with the fundamental rights of practically the entire European
population (para. 56). In this connection, it further noted that the Directive did not require any relationship between the data
retained and a threat to public security (paras. 58-59).
Secondly, it pointed out that the Directive did not contain any substantive or procedural conditions for access to the data retained by
competent national authorities, nor for their subsequent use (paras. 60-62).
Thirdly, the Court noted that no distinction was made on the basis of the potential usefulness of the data retained for attaining the
objective pursued or according to the persons concerned (paras. 63-64).
In view of all the above, the Court held that Directive 2006/24 does not lay down clear and precise rules governing the extent of
the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, thereby entailing a wide-ranging and
particularly serious interference with those fundamental rights (para. 65). The Court further held that Directive 2006/24 does not
provide for sufficient safeguards, as required by Article 8 of the Charter, to ensure effective protection of the data retained against
the risk of abuse and against any unlawful access and use of that data (paras. 66-68).
In view of all these considerations, the Court concluded that the EU legislature had breached the principle of proportionality (para.
69) and ruled the Directive invalid.
From the standpoint of fundamental rights, an academic lawyer would readily notice and welcome the high intensity of review
applied and the detailed reasoning provided by the Court in this case. Judicial review could have hardly been more searching.
Furthermore, from the standpoint of the EUs competence, respect for fundamental rights, as interpreted by the Court, might
sometimes require the Union legislator to harmonise rules in a more detailed manner to limit interference with Charter rights to
what is strictly necessary for the attainment of the objective pursued. This presents an interesting juxtaposition between prescribed
competence limits and the need to adequately protect fundamental rights when the existence of Union competence is established.
Menelaos Markakis is reading for a DPhil at the University of Oxford and is an Academy of Athens scholar. He is a frequent
contributor to the OxHRH Blog.

One May Not Retain Personal Data Forever: The Judgment in Google Spain
By Menelaos Markakis | 29th May 2014

The Court of Justice of the European Union recently held in Google Spain that an individual may, in some cases, request that
Google take down personal information from its search results.
The dispute in the main proceedings concerned a decision by the Spanish Data Protection Agency, ordering Google to remove
personal data relating to Mr Costeja Gonzlez from its search results. These concerned an announcement of a real-estate auction
connected with the recovery of social security debts, which had appeared on a Spanish newspapers website upon order of the
Ministry of Labour and Social Affairs to attract as many bidders as possible. The announcement was made in 1998, and the
attachment proceedings had been fully resolved.

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Having established that Directive 95/46 on the protection of individuals with regard to the processing of personal data applies to
search engines (paras. 21-41), the Court ruled that the processing of personal data at issue in the main proceedings fell within
its territorial scope, even though Google Inc. has its seat in the United States. Relying on the wording of the Directive and on its
objective of ensuring effective and complete protection of the fundamental rights and freedoms of natural persons, the Court ruled
that the establishment of a Spanish subsidiary (Google Spain) with the purpose of selling advertising space on Google to Spanish
clients sufficed to bring the processing within the territorial scope of the Directive (paras. 45-60).
In the absence of any other legitimate ground for the processing of these data, Google had to establish that it was necessary for
the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed,
except where such interests are overridden by the interests [or] fundamental rights and freedoms of the data subject (Article 7(f)
Directive). In this connection, the Court noted that the processing of personal data by a search engine is liable to affect significantly
the fundamental rights to privacy and to the protection of personal data (Articles 7 and 8 of the Charter of Fundamental Rights
of the European Union), in that it enables any internet user to obtain a structured overview of the information relating to that
individual that can be found on the internet and to establish a more or less detailed profile of him (para. 80). It was held that,
due to the potential seriousness of that interference, it could not be justified by economic interests (para. 81).
Moreover, a fair balance should be sought between the legitimate interest of Internet users in having access to that information,
and the fundamental rights of the data subject (para. 81). Whilst the data subjects rights would override, as a general rule, the
interest of Internet users, that balance may depend on the nature of the information in question and its sensitivity for the data
subjects private life and on the interest of the public in having that information. This interest could vary according to the role played
by the data subject in public life (para. 81). Interpreting the data subjects rights in light of the fundamental rights to privacy and to
the protection of personal data, the Court held that he or she may request that the information in question no longer be made
available to the general public by its inclusion in such a list of results (para. 97).
Two points are of particular importance. First, the territorial scope of EU data protection legislation has been ruled to be particularly
broad. This development is to be welcomed from a data protection perspective. Second, similarly to the data retention case, the
Court appears very protective of the right to respect for private life and the right to the protection of personal data. The impugned
data had been lawfully processed by the newspaper and were, above all, true. However, an individual may still, in some cases,
request that such information be consigned to oblivion, without having to establish that such processing causes prejudice to him
or her (para. 96) or to first request that the original website take it down (paras. 82-88). This seminal judgment marks another step
towards the creation of a fully-fledged EU Charter jurisprudence.
Menelaos Markakis is reading for a DPhil at the University of Oxford and is an Academy of Athens scholar. He is a frequent
contributor to the OxHRH Blog.

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Will Australia Learn from the EUs Mistakes on Data Retention?


By Fiona de Londras | 9th August 2014

Police officers, anti-terrorism officials and politicians all tell us that we need data retention laws, especially in a time of increased
technological sophistication. This week, George Brandis, the Attorney General for Australia, announced that Australia will this year
join the states with data retention laws, requiring all telecoms providers to retain metadata for two years.
This decision is striking in the light of recent decisions by EU and national courts finding such laws to be disproportionately intrusive
on individual rights. Until April of this year, the EUs Data Retention Directive required data retention for between 6 and 24 months
in all member states. The proposal for data retention laws had bubbled under the surface of EU politics for some years, but it was
not until the London and Madrid bombings that it secured sufficient political support, and it was introduced in 2006. It was, however,
controversial right from the start, with civil society being highly critical of its catch all approach to retention, the discretion it left to
national states in terms of implementation and the very long retention periods in some EU member states.
In April 2014, the CJEU struck this law down on the basis that it interfered disproportionately in the rights of those within the
EU; while data retention was introduced for legitimate security purposes, the Directive simply went too far. In this, the Court was
echoing the findings of a number of national courts across the EU, which had also expressed dissatisfaction with the Directive. The
concerns raised by the Court in that case offer cautionary tales for Australia at this time.
Importantly, the Court expressly recognised that the data retention model in the Directiveand the model to be introduced in
Australiaconstitutes blanket surveillance. Once this law is introduced, the data of every single one of the 23 million Australians
who use telecommunications devices would be retained and could then be accessed by the government. This is so whether
one has ever done anything to arouse suspicion or not; simply using a phone or the Internet will be enough for ones data to be
retained. This is problematic in itself but also makes clear the importance of ensuring that the state can only access this information
for good faith serious criminal investigations with a court order, where a sound case for access has been made out.
The proposed retention period of two years is extremely long in light of available evidence about when data is usually accessed
by states. Across the EU, the majority of requests for access to this data took place within six months of its retention. Why, then,
is a two-year retention period being proposed? Have there been cases where the security services and police needed, and could
not secure, access to such data as long as two years after the communication in question? And will this be the retention period for
everyone, or will people with criminal records (for example) have their data retained for longer than people who have never come to
the attention of the state? These questions are fundamental to the proportionality of the law itself.
Metadata can help to make states more secure; however, the mass collection of such data can also make citizens less secure.
Telecommunications companies are not necessarily fully equipped to secure the data it holds from accidental release or, indeed,
from malicious attacks by hackers and criminal entities. Furthermore, metadata can reveal deeply personal details about our
individual lives. Australian politicians and civil society must ask themselves whether, in a country without a comprehensive bill of
constitutional rights, this is a step they are prepared to take.
Governments are notoriously reluctant to provide hard facts to back up their plans for new anti-terrorism laws. However, when
a government proposes introducing a law the likes of which have been struck down on human rights grounds in numerous
states, evidence of its necessity must be demanded. So too must the government prove that the law being proposed contains
safeguards showing Australia has learned from the mistakes of other countries. Blanket surveillance hands enormous power to the
government. It must show it is prepared to exercise it only within strictly drawn limits.
Fiona de Londras is Professor of Law and Co-Director of the Durham Human Rights Centre at the University of Durham where she
coordinates the FP7-funded, collaborative project SECILE. She has spent the 2014-2015 academic year as a Visiting Fellow at
Oxford Human Rights Hub.

Respect for Private Life under Article 8 and Covert Filming Sderman v Sweden
By Melina Padron | 7th January 2014

The Grand Chamber of the European Court of Human Rights (GC) found Sweden had breached its obligations under Article 8 of
the European Convention on Human Rights (ECHR) for failing to have in place laws protecting the applicant from being filmed
without consent.
The case was brought by Ms Sderman, who in 2002 (at age 14) discovered that her stepfather had hidden a recording camera in
the bathroom in an attempt to film her naked. The video was quickly destroyed by her mother.
The stepfather was prosecuted for sexual molestation but acquitted by the Swedish appeal court on the grounds that the conduct

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lacked an essential element, namely the intention that Ms Sderman find out about the recording. The appeal court noted that
Swedish law did not prohibit the filming of individuals without their consent and further, that in theory, his conduct may have
constituted attempted child pornography. However, it declined to consider this given the absence of such charges.
Ms Sderman brought a civil claim for compensation in conjunction with the criminal prosecution, but as a result of the acquittal,
this claim was dismissed.
She made an application under Article 8 (right to respect for private life) of the ECHR arguing Sweden had failed to provide her with
civil or criminal remedies against her stepfathers secret filming, violating her personal integrity.
The Chamber decided by a majority that there had not been a breach of Article 8.

It found that although the crime of sexual molestation did not cover such acts as the one carried out by the stepfather, the crime
of attempted child pornography, in theory, could. It also found that other civil remedies were available to Ms Sderman and that it
was her choice to join her civil claim to the criminal prosecution. None of these factors amounted to significant flaws in Swedish
legislation.
The GC overturned the decision of the Chamber and held that there had been a breach of Article 8.
Following the case of M.C. v Bulgaria (Application No 39272/98), the GC noted that the significant flaws test had been incorrectly
applied by the Chamber as it relates to the assessment of shortcomings in investigations. Instead, the correct test involved
considering the adequacy of Swedens legal framework in providing protection to Ms Sderman against the acts of her stepfather.
The GC heard submissions on whether the secret filming in this case could have constituted attempted child pornography and was
not convinced it could have. It found that this provision did not intend to criminalise all pictures of naked children.
The GC considered that the provision on sexual molestation, which in 2002 contained the requirement of intention or recklessness
on the part of the offender that the victim find out, had not protected Ms Sderman against the lack of respect for her private life.
Finally, no other provision of Swedish criminal law at the time could have protected her rights under Article 8.
As regards her claim for compensation, the GC was not persuaded that she would have succeeded in pursuing other civil claims
said to have been available to her.
This gap in protection left by the absence of both criminal and civil remedies in this case led the GC to conclude that Swedish law
in force at the time did not adequately protect Ms Sdermans Article 8 rights. However, the Court recognised that the State had a
margin of appreciation on how to afford such protection, and it needed not be solely by the enacting of criminal offences.
The facts of this case are very specific, but this judgment is nevertheless of wide implication. It is bound to send chills up and down
the spines of the UK press, especially the tabloids. Whilst it can provide further momentum for those who advocate stronger ethical

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parameters in the way the press conducts its work, it should be approached carefully (as it was in Sweden during the process of
adoption of new legislation) for its potential detrimental impact on press freedom.
Melina Padron is currently a pupil barrister at Doughty Street Chambers. She was previously a paralegal in Leigh Days clinical
negligence department, a legal caseworker at the AIRE Centre and a visiting lecturer in International Human Rights Law at the
University of Bedfordshire.

Conflict
Human Rights and the Arms Trade Treaty
By Kate Stone | 9th January 2015

The Arms Trade Treaty (ATT) was adopted by the UN General Assembly on 2nd April 2013. This post marks the recent entry
into force of the treaty on 24th December 2014, a milestone that has been widely acclaimed by campaigners and human rights
organisations. Sixty-one states have now ratified the treaty, and a total of 130 are signatories.

The most obvious significance of this treaty for human rights law is the requirement at the heart of the treaty for exporting
states to make certain assessments relating to the likely consequences of an arms transfer before authorising it to go ahead.
This requirement includes a duty to consider the likelihood that the arms in question could be used to commit or facilitate a
serious violation of international humanitarian or human rights law. If the exporting State identifies an overriding risk of such
consequences, it must not authorise the export. However, before refusing, it must consider whether there are measures that could
be undertaken to mitigate the risk, including jointly developed programmes involving the importing and exporting States. This
would include programmes aimed at promoting and protecting human rights in the recipient State.
When assessing the likely human rights impact of the proposed transfer, States parties must also take into account the risk that
the arms will be used to commit or facilitate serious acts of gender-based violence or violence against women and children. Whilst
it is difficult to see what this adds to the above provisions in strict legal terms, it acknowledges the egregious harm that small arms
in particular inflict upon women and children, particularly in conflict zones, and the targeting of women and children as a military
strategy. In this way the ATT reflects a growing global recognition that violence against women is a distinct and profoundly troubling
human rights issue that must be specifically addressed. Ratification and implementation of the ATT has been cited as a desirable
measure by CEDAW in its General Recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations.

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The ATTs export criteria therefore require States parties to refer back to the existing body of international humanitarian and human
rights law when implementing the treaty. However, the provisions are also themselves of interest as far as the development of
international human rights law is concerned. The inclusion of human rights as a factor, which in certain circumstances must, at least
in theory, override a States commercial interests, raises questions about the influence of human rights upon public international law
in general.
The treaty imposes upon exporting States an international law obligation, albeit one that is limited in scope, in respect of the human
rights of individuals in the recipient State. How does this relate to States parties extraterritorial obligations in international human
rights law? Could further international obligations of this type be developed in other contexts? What relationship might this type of
provision have to ongoing work on business and human rights, including the UN Guiding Principles on Human Rights? Such issues
merit further examination.
There is debate to be had on the extent to which a treaty seeking to regulate rather than circumscribe the global trade in weapons
can have a practical positive impact on human rights. Existing humanitarian criteria governing arms transfers in the domestic law
of many exporting states have not prevented transfers from proceeding in highly controversial circumstances, and as drafted, the
ATTs export provisions leave plenty of space for divergent and self-serving interpretation by States parties. As many commentators
have noted, a rigorous approach to implementation, incorporating existing international human rights standards, will therefore be
necessary if the ATT is to promote, as a starting point, robust and consistent assessment of the likely human rights impacts of
potential arms transfers.
Kate Stone is a barrister at Garden Court North Chambers, Manchester, specialising in human rights law. She is a contributor to
the Arms Trade Treaty Legal Response Network (ATT Legal).

Classic Human Rights Law Territory: Why the HRC Need to Talk About Drones
By Natalie Cargill | 20th October 2014

A US drone strike killed two suspected militants in northwest Pakistan last Saturday, in an attack which marks the seventh this past
week, and the sixteenth this year. These latest strikes interrupt a six-month hiatus in drone strikes in Pakistan and follow the first
discussion at the Human Rights Council of the use of armed drones. In an unprecedented step, HRC resolution 25/22 called for an
expert panel to discuss the use of armed drones, and while some member states objected, there is increasing consensus around
the decision to officially consider drone use as a human rights issue.
The panel was held on 22 September 2014 and opened with a series of interventions objecting to HRC as an inappropriate
forum to discuss drones. The Council should not according to the UK delegation take up weapons on a thematic basis, or
according to the US delegation address the law of armed conflict. Drone use, however, is very much a Council issue, as was
demonstrated in discussions about the legal frameworks applicable to the use of armed drones, the human rights impact of drone
strikes and the human rights requirement for transparency and accountability.
The Legal Framework Applicable to Armed Drones
Even in times of armed conflict, a states international humanitarian law obligations are always complemented by its international
human rights law obligations. Flavia Pansieri, Deputy High Commissioner for Human Rights, reflected that discussions of armed
drones have largely focused on the question of whether their use of compatible with the rules and principles of international
humanitarian law, which is applicable in situations of active hostilities in the context of an armed conflict. But international human
rights law applies at all times, including in situations of armed conflict.
Many legal questions have arisen when a person participates directly in hostilities from the territory of a non-belligerent State, or
moves into such territory after taking part in an ongoing armed conflict (such has been the case with Pakistan). The ICRC delegate
at the panel noted in this scenario international humanitarian law (IHL) would not be applicable, meaning that such an individual
should not be considered a lawful target under IHL, as advising otherwise would mean that the whole world is potentially a
battlefield and that a person moving around the globe could be lawfully targeted under IHL in the territories of States not party to
any armed conflict.
The Human Rights Impact of Drone Strikes
Drone strikes have a grave and widespread impact on the lives of individuals and their communities and have compromised the
enjoyment of individual rights, including rights to peaceful assembly, education, health, freedom of association and freedom of
religion, among others. In addition to loss of life, armed drones create an atmosphere of fear in affected communities, and this fear
interrupts education, religious and cultural practices and the enjoyment of basic human rights and fundamental freedoms.

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Transparency and Accountability


Both transparency and accountability are key to ensuring that victims of human rights violations can exercise their right to
a meaningful remedy. Lack of transparency concerning the circumstances in which armed drones are used, as well as the
involvement of intelligence agencies in their use, create obstacles to determining the applicable legal framework and ensuring
compliance. As Special Rapporteur, Ben Emmerson, told the HRC, the duty to investigate and transparency are classic human
rights law territory.
As the boundaries of trans-national counter-terrorism operations expand, increased use of remotely piloted aircraft underlines the
need for greater consensus on how to apply the international laws that regulate lethal force. Any measures employed to counter
terrorism, including the use of remotely piloted aircraft or armed drones, must comply with Charter of the United Nations,
international human rights law and international humanitarian law, and respect the principles of precaution, distinction and
proportionality. It would seem, then, that more UN involvement is needed, not less.
Natalie Cargill is a University of Oxford graduate and has worked with the United Nations and development NGOs in Geneva. She
is currently a GDL student in London.

Iraq Needs Incisive Measures from the UN Security Council


By Michele Porcelluzzi | 30th August 2014

The current US military operations in Northern Iraq, resisting troops belonging to the Islamic State of Iraq and Syria (ISIS), may be
evaluated as compatible with international law. However, despite this, UN Security Council measures are still needed.
According to Article 2 (4) of the UN Charter and customary international law, the use of force is legal only in cases of self-defense,
or on the authorization of the Security Council acting under Chapter VII, with respect to threats to peace, breaches of the peace,
and acts of aggression.
In recent weeks, ISIS troops have attacked cities in the North of Iraq, committing gross violations of human rights. In order to repel
them, the US is currently carrying out targeted military operations. These have a dual aim: to protect American people and facilities
inside of Iraq and to help save thousands of Iraqi civilians, such as those besieged on Mount Sinjar. Further, the EU is providing
military support to beleaguered Kurds in northern Iraq.

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In a letter issued on August 8, President Obama justified these military operations to Congress as necessary to protect American
personnel in Iraq by stopping the current advance on Erbil by [ISIS]. However, the existence of the right to use force in order to
protect nationals is undoubtedly controversial.
Further, the military operations in north Iraq are not classifiable as humanitarian intervention. Typically, a humanitarian
intervention, like that in Kosovo in 1999, is conducted by a State or a group of States against another State, which is committing
gross violations of its citizens human rights. At present, the legality of a humanitarian intervention is one of the most controversial
issues in international law. In this case, ISIS and not the Republic of Iraq is committing atrocities against Iraqi citizens.
Therefore, this cannot a humanitarian intervention as currently understood.
The self-defense argument is the most persuasive. ISIS is attacking a sovereign State, the Republic of Iraq. According to article 51
of the UN Charter, the State has an inherent right of individual or collective self defense. In compliance with international customary
law, there are three requirements that have to be satisfied: first, there must be an actual or imminent armed attack against a State;
second, the attack must attain a minimum scale; finally, the armed response must be necessary and proportionate. In this case,
the US military operations in Iraqi territory have been authorized by the local government in order to combat the illegal aggression
of ISIS and to prevent gross violations of human rights. It is therefore clearly a case of collective self defense allowed by the UN
Charter, though the use of force must, of course, be both proportionate to repel the attack and not excessive.
On August 15, the UN Security Council adopted Resolution 2170 (2014), which condemned gross, systematic and widespread
abuse of human rights by ISIS and Al-Nusra Front. Further, it called on Member States to take national measures to prevent
fighters from travelling from their territories to join the groups, and it named individuals related to ISIS who would be subject to
travel restrictions, asset freezes and other measures targeted at Al-Qaida affiliates.
However, this Resolution appears insufficient to stop the attacks of ISIS, as it establishes sanctions only for six individuals and
does not authorize the use of force. In contrast, the US military intervention is incisive as a result of this intervention, Iraqi troops
have retaken Mosul dam from ISIS militants but unilateral. It is only the United States that decides when and where bombarding
occurs, with no plan agreed with any other State or International Organizations.
Iraq now needs incisive and multilateral measures, established by the UN, capable of stopping ISIS. The lives of thousands of Iraqi
citizens are at risk. Can the world stand by and watch?
Michele M. Porcelluzzi completed his M.Sc. in Law at Bocconi University in 2010. His research interests include International Public
Law, International Humanitarian Law, Human Rights Law and National Security Law.

Dignifying the Most Vulnerable In and Through Security Council Resolution 2139
By Sarah M. Field | 19th March 2014

Conflict perhaps more than anything else illuminates our shared vulnerability to hurt and harm of unimaginable form and depth.
The legal protection of rights was born of such suffered injustice, as articulated in the UN Charter. To an extent then, it may be
viewed as juristic response to our embodied vulnerability. Therein lies one of the enduring paradoxes of international human rights
law; the most vulnerable frequently have the least access to justice.
Consider the hundreds of thousands besieged in Syria: over a thousand days since the conflict began, rights violations cascade-violations of the rights to life, freedom from hunger and of movement layer upon violations of the rights to legal remedies, to take
part in public affairs and the rights to freedom of expression and association, amongst others. And, the sole possibility of redress is
conditional on one of the most precarious of all political processes decision-making towards peace agreements.
Geneva II presented hope. The Communiqus of Geneva I and the London 11 both required ensuring the right to humanitarian
assistance as a part of more substantive negotiations. As the two-staged process stalled to a fracturing halt on the 15th February,
hope transferred to the Security Council. The decision to adopt Resolution 2139 demanding the parties to the conflict respect and
ensure respect for applicable international law presented a breakthrough. However, the imperative for the resolution, the process
of its adoption and the substance of the resolution, including the missing (negotiated-out) provisions, illuminates, under harsh light,
the inadequacies of international law. Of course, the multifarious instruments of international human rights and humanitarian law
include vital dignity affirming devices. If the Syrian State had implemented the past recommendations of the Human Rights
Committee, might the conflict have been averted? And if the parties to the conflict had heeded the guidance of the guardian of
international humanitarian law, might the hurt and harm have been lessened? Of course, the operative word here is if.
The international community steps into the breach in and through the Charter bodies. For the people living under siege, these are
also vital spaces for their rights to be seized, shaped and expressed. General and Syria-specific recommendations and decisions

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provide a basis for advocacy and redress now and into the future, including, for example, the decision by the Human Rights Council
to establish an Independent International Commission of Inquiry.
However, the form and process of decision-making (including rules) also may be viewed as concurrently creating vulnerability in the
form of exclusion. For example, whereas the Syrian State was represented within the Security Council, those made vulnerable by
the forces of the State were unrepresented; they were dependent on the international community seizing, shaping and expressing
their rights. This is also a process by (in)action: whether or not their rights are secured is dependent on political agreement about
the facts and the response specifically among the five veto-wielding members.
The vulnerability effects of the latter are obvious and graphically illustrated by the resolution: the demands on the parties to the
conflict to respect and ensure respect for international law are not matched by decisions to secure the right to humanitarian
assistance of the people of Syria. However the form and process also create vulnerability in a more subtle way by subverting
the position of the right-holder reframing bearers of rights to objects of international protection. De jure, the people under siege
remain equal in dignity and rights. De facto (without representation and effective remedies), they are dependent on a precarious
collision of legal, political and principled imperatives for redress. Viewed in this way, neither the process nor the outcomes dignify
the people of Syria.
Though deeply inadequate, the resolution is nonetheless a vital dignity-affirming agreement. First, it states that international law
matters, rights matter. Second, it illumines the potentialities of law into the future, connecting violations to international crimes,
establishing a monitoring and reporting mechanism and expressing an intention for further action upon non-compliance. Third,
it re-affirms the import of a rights-based political solution: the full participation of the people of Syria in and through the peace
trajectory. Countering the inaction, then, is the fact of agreement by a divided Security Council. Geneva II stalled; the right to
veto looms over future Security Council decisions with foreboding bleakness; the question of how to secure the rights of the most
vulnerable remains reducing us all.
Sarah M. Field is a Human Rights Practitioner with global experience supporting the rights-based development of the rule of law, a
Post-Doctoral Researcher at the Faculty of Law, University College Cork, Ireland and the founder of a developing legal advocacy
project asking the child question.

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Democracy & Voting

Democracy & Voting


Chapter 6

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Introduction Alecia Johns

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The Not-so-Paramount Right to Vote

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The Worrisome Casual Approach to (Dis)enfranchisement

118

UK vs ECtHR: The Prisoner Voting Saga Continues

119

Migrants Voting at the Local Level is a Human Right

120

Where Have All The Expatriates Gone?

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Malawis Electoral Fiasco

122

A Watershed Case for African Human Rights: Mtikila and others v. Tanzania

123

McCutcheon v FEC: The Harvest of Pernicious Seeds

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Contributions Caps and the First Amendment

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Is An Obsession With Foreign Investment Eroding Democracy in Papua New Guinea?

Democracy & Voting


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Introduction

By Dr Alecia Johns
The global political landscape now includes more electoral democracies than ever before. Notwithstanding this broad-based
increase in popular sovereignty, as the posts in this chapter outline, there are still many issues which continue to affect the extent
and quality of democracy enjoyed by citizens in a number of jurisdictions.
First, even though the right to vote represents the bedrock of democratic governance, its status in a number of polities remains
less than fundamental. For example, in India, the worlds largest democracy, the right has been deemed by the Supreme Court
as merely statutory as opposed to constitutional. Vishwajith Sada highlights the extent to which this categorisation inadequately
safeguards the right to vote and is out of touch with Indias international obligations (The Not-so-paramount Right to Vote p 116).
Similarly, Ruvi Ziegler laments the extent to which the UK Supreme Court has provided flimsy protection of the right to vote within
the UK constitutional order (The worrisome casual approach to (dis)enfranchisement p 117).
The classification and status given to the right to vote is not only of symbolic significance; it also colours the way in which decisions
are made regarding who should receive this right and bases on which it may be denied. One recurring issue in this area is that of
prisoner disenfranchisement. Ziegler explores this issue within the context of the UKs non-compliance with the 2005 European
Court of Human Rights decision in Hirst (no. 2) [2005] ECHR 681, which held that the countrys blanket disenfranchisement
of all prisoners violated Article 3, Protocol 1 of the European Convention on Human Rights (UK v ECtHR: The Prisoner Voting
Saga Continues p 118). Prisoner disenfranchisement also remains a central problem in the United States where over six million
Americans are currently disqualified. In the US, these laws disproportionately affect African Americans, with some states denying
the right to vote even after the individual has completed his sentence.
Another central issue pertaining to voting rights turns on the extent to which states often predicate political participation on some
degree of nexus to the state. This is often expressed in the form of citizenship and/or residency requirements for voting and
standing for office. However, with increased levels of migration in a globalised and inter-connected world, some of these traditional
indices of closeness have been increasingly challenged. For example, Nikolaos Sitaropoulos stridently argues that non-citizen
migrants who are permanently residing in EU member states, ought to be given the rights to vote and stand for office at the local
level (Migrants Voting at the Local Level is a Human Right p 119). Quite similarly, Ziegler challenges the legitimacy of residency
requirements, which serve to exclude UK expatriates who may still have a stake in local elections, in his post on the qualifications
for voting in the Scottish independence referendum (Where Have all the Expatriates Gone? p 120).
While the formal conferral of the right to vote remains a necessary ingredient for successful democracy, it is by no means sufficient
for that end. A great deal also turns on the substantive fairness of the electoral process, as well as the more general societal
commitment to transparency, equality and the rule of law. As one anonymous post from Papua New Guinea highlights, corruption
and unchecked power can serve to greatly undermine the free expression of the peoples will (Is an Obsession with Foreign
Investment Eroding Democracy in Papua New Guinea? p 125). The second half of the posts within this chapter address these
important substantive issues as they have arisen in a number of jurisdictions.
Dan Chirwas post illustrates the extent to which an inefficient and politically partial electoral commission greatly compromised
the fairness of Malawis 2014 general elections (Malawis Electoral Fiasco p 121). Therefore, even if the right to vote is widely
conferred to most citizens (and permanent residents), this means little if the rules and procedures surrounding the electoral process
result in manifest unfairness. Rules regarding the participation of candidates and the funding of their campaigns are of particular
significance in this sphere. Oliver Windridge highlights the landmark decision of the African Court of Human and Peoples Rights
where the Court held that Tanzanias prohibition of independent candidacies was in breach of various articles of the African Charter
of Human and Peoples Rights, the International Covenant on Civil and Political Rights and the Universal Declaration of Human
Rights (A Watershed Case for African Human Rights: Mtikila and others v Tanzania p 122). The Court highlighted the importance
of the rights to freely associate and to participate in government, without having to belong to any given political party.
Rules regarding campaign finance also affect the citizens ability to meaningfully seek political office and to engage in public
debate. In my post within this chapter, I briefly explored the extent to which the abolition of certain contribution limits in the United
States, could serve to deepen existing inequalities in influence enjoyed by wealthy donors (McCutcheon v FEC: The Harvest of
Pernicious Seeds p 123). Claire Overman and Matthew Tyler then go on to take a closer look at the potential effects of removing
these contribution limits in their post on the US Supreme Courts decision in McCutcheon v Federal Election Commission 572 U.S.
__(2014) (Contribution Caps and the First Amendment p 124).
As noted above, in order for democracy to be truly meaningful, it must be taken to include not only thin conceptions of procedural
democracy but also matters of substantive democracy such as civil liberties, equality and a commitment to the rule of law. In
conceiving of democratic rights it is therefore important to note that these go well beyond the rights to vote and stand for office.
As the posts within this chapter have highlighted, the full enjoyment of democracy is invariably intertwined with issues concerning
migrants rights, criminal justice, associational rights and freedom of expression. This brief collection therefore serves to shed light

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on some of the recent developments in these areas, with a wide jurisdictional coverage inclusive of the United States, the United
Kingdom, India, Malawi, Tanzania, the EU and Papua New Guinea.
Dr Alecia Johns is an attorney-at-law, called to the Jamaican Bar in 2011. She serves as the Commonwealth Caribbean
correspondent for the Oxford Human Rights Hub.

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The Not-so-Paramount Right to Vote


By Vishwajith Sadananda | 14th March 2014

Last week, the Election Commission of India announced the time frame for the general elections to constitute the 16th Lok Sabha
(House of the People) of the Parliament of India. Widely considered to be an election comprising of the highest number of voters in
the world, it follows that the nature of the right to vote in India should be analyzed.

Back in September 2013, while dealing with the question of whether a citizen is entitled to cast a negative vote in an election,
thereby rejecting the candidates in contention, the Supreme Court also dealt with the status of the right to vote (the NOTA
judgment). The Court sought to clarify the confusion caused by observations it made in its previous decisions in Kuldip Nayar
(Writ Petition (civil) 217 of 2004), Association for Democratic Reforms (Civil Appeal No.7178 OF 2001) and PUCL (Writ Petition
(civil) 196 of 2001) wherein, apparently, different positions were taken as to the nature of the right to vote. While reconciling the
aforementioned decisions, it held that the right to elect is sourced from the Representation of the People Act, 1951 and hence
merely a statutory right, neither a fundamental nor constitutional right.
The initial confusion might have arisen from the fact that though all three decisions follow a similar trajectory in understanding
the meaning of elections and voting, a holistic reading of the three decisions led to a nebulous understanding as to the nature
of the right to vote itself. In Association for Democratic Reforms, in the context of the right of the voter to get information on the
background of the candidate, the Court was of the opinion that the voters right to speech and expression would include casting
of votes (Para. 46). Similarly, in PUCL, the Court was of the opinion that the freedom of voting by expressing a preference for a
candidate is nothing but a freedom of expressing oneself (Para. 95). Even in the NOTA judgment, the Court equated the act of
voting with freedom of speech and expression (Para. 21).
However, the Supreme Court, in the NOTA judgment, added that though the right to vote per se is a pure and simple statutory right
(following Kuldip Nayar [Para. 151.1]), the way this right is exercised, being a form of expression, would fall within the ambit of the
fundamental right to speech and expression. It is this distinction that highlights the Courts logical inconsistency. By holding that the
way the right is exercised is a fundamental right, while claiming that the right per se is a statutory one, the Court has essentially
made a fundamental right dependent on a statutory one. To take it to its logical conclusion, the expression of political will would
then depend not on higher constitutional principles, but the whims and fancies of the legislature vested with the power of amending

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and repealing statutes.


Furthermore, the Court, in all these decisions, has consistently ignored the purport of Articles 325 and 326 of the Indian
Constitution. Both these provisions deal with the right to vote and the necessary qualifications required to vote in the elections for
either the Lok Sabha or the State Assemblies. Therefore, even if, for the sake of argument, a case for voting being considered a
fundamental right cannot be countenanced, there is definitely merit in claiming that the right to vote, at the least, is a constitutional
right.
India is a party to both the UDHR as well as the ICCPR, instruments that highlight the paramount nature of the right to vote for
proper and effective actualization of ones socio-political voice. However, by refusing to hold that voting per se is a fundamental
right, and instead holding that the way an apparent statutory right is exercised is a fundamental right, the Court has not only shown
highly questionable logic, but more importantly, has also lost an opportunity to raise the right to vote to a higher pedestal, in tune
with Indias constitutional as well international obligations. Considering Indias disparate socio-political voices as well as the fact
that universal suffrage in India is not truly universal, it is absolutely pertinent that the right to vote, an important tool to hold together
the edifice of democracy, is solidified and given a higher protection.
A.S. Vishwajith (B.A, LL.B (Hons) NALSAR University of Law, Hyderabad, India) is a judicial clerk in the High Court of Delhi.

The Worrisome Casual Approach to (Dis)enfranchisement


By Reuven (Ruvi) Ziegler | 24th February 2014

Lord Phillips lecture at the University of Oxford (entitled The Elastic Jurisdiction of the European Court of Human Rights) critiqued,
inter alia, the application by the Strasbourg court of its long-standing living instrument (Tyrer v UK [1978] ECHR 2) European
Convention on Human Rights interpretation to the treatys jurisdiction clause, Article 1 (Al Skeini and others v UK (2011) 53 EHRR
18, contra Bankovic [2001] ECHR 890).
Lord Phillips highlighted the UKs 8.5 year breach of its binding international obligation to abide by the Grand Chambers Hirst (No.
2) [2005] ECHR 681 judgment and amend section 3 of the Representation of the People Act 1983, which currently disenfranchises
all serving prisoners in all types of elections, including this Mays European Parliament and local elections.
Reflecting on his tenure as a member of the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, Lord Philips contended
that, in the course of deliberations, it became apparent (to him) that the question of whether some prisoners should get to vote was
of comparatively minor significance. Describing the Committees recommendations to amend UK legislation so that all prisoners
serving sentences of 12 months or fewer should be entitled to vote, he opined: would it really be earth shaking to give some short
term prisoners the right to vote, which most of them would not bother to exercise? This blog addresses this seemingly casual
approach to (dis)enfranchisement.
In a speech delivered at Georgetown University the day before Lord Phillips lecture, U.S. Attorney General Eric Holder stressed
the fundamentality of the right to vote in the light of vestiges of racially motivated disenfranchisement legislation in some American
states. Holders call was echoed by a New York Times editorial, which noted that over six million Americans, more than two percent
of the otherwise eligible voting population, is currently disenfranchised. Fortunately, the number of disenfranchised persons in
England and Wales is far lower (65,963 on 30 September 2013); nonetheless, the vote of each and every citizen is a badge of
dignity and of personhood.
The fundamental nature of an individual prisoners right to vote does not depend on its exercise by all right-holders; its significance
lies in the knowledge and awareness that one is a right-holder. Indeed, the claim that prisoners are not interested in voting is
reminiscent of arguments made in the nineteenth century against the extension of suffrage to women. In Sauv (no. 2) v Canada
2002 SCC 68, the Canadian Supreme Court quashed legislation disenfranchising prisoners serving sentences of over two years.
While justifying disenfranchisement, Justice Gonthiers powerful dissent acknowledged that being temporarily disenfranchised is
clearly a significant measure, which is part of the reason why it carries such great symbolic weight.
Even if serving prisoners are indeed less likely to vote than the general population (data from Israel suggests otherwise), prisoners
will have probably developed their disinterest or disillusionment with the political system before entering prison. Rather than lead
one to dismiss the significance of voting for prisoners, low turnout should mobilise political elites to assume responsibility for
furthering civic engagement. Indeed, the right to elect legislators in a free and unimpaired fashion is a bedrock of the political
system.
The Scottish Independence Referendum (Franchise) Act gives rise to several franchise-based legal challenges, inter alia, the
exclusion in section 3 of all serving prisoners from participation in the 18 September 2014 referendum. The provision has recently
withstood judicial review in the Court of Session Outer Houses judgment in Moohan, Gibson, and Gillon [2013] CSOH 199. Lord

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Glennies judgment relied, inter alia, on the ECtHR ruling in McLean and Cole v. UK (Application nos.12626/13 and 2522/12), which
interpreted Article 3 of Protocol 1 to the ECHR (A3PI) to be inapplicable to the exclusion of UK prisoners from participation in the
Alternative Vote referendum. A3PI refers to free electionswhich will ensure the free expression of the opinion of the people in
the choice of the legislature.
Notably, however, the ECtHR has never considered a claim about denial of voting rights in an independence referendum, which
arguably concerns the choice of the legislature in the sense of which parliament is to enjoy sovereign authority in Scotland in the
post-referendum era. If and when the Court of Session judgment reaches Strasbourg, a living instrument interpretation of A3P1
may plausibly ensue.
Elsewhere, I have made the case for letting prisoners vote; I have also lamented the flimsy protection that the recent Supreme
Court judgment in Chester and McGeoch [2013] UKSC 63 provides for the right to vote in the UK constitutional order. It is high time
to start taking the right to vote seriously.
Dr Ruvi Ziegler is a Lecturer in Law at the University of Reading Law School. He is a frequent contributor to the OxHRH Blog.

UK vs ECtHR: The Prisoner Voting Saga Continues


By Reuven (Ruvi) Ziegler | 14th August 2014

On 12 August 2014, the Fourth Section Chamber of the European Court of Human Rights in Firth and others [2014] ECHR 874 held
yet again the UKs blanket disenfranchisement of prisoners, in accordance with Section 3 of the Representation of the People Act
1983, to be a violation of Article 3 of the First Protocol to the ECHR.

The case concerned prisoners in Scottish prisons denied the right to vote in elections to the European Parliament (EP) held on 4
June 2009. Indeed, this outcome was to be expected in view of the Grand Chamber judgments in Hirst (No. 2) [2005] ECHR 681
and Scoppola (no. 3) [2012] ECHR 868. Notably, in EP elections, the UKs disenfranchisement practices also affect the right to vote
of EU nationals serving sentences in UK prisons (an issue which deserves jurisprudential attention).
I have previously critiqued the casual approach to the disenfranchisement of prisoners in the UK, manifested in the scant public

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attention given to the rejection of a legal challenge to the blanket disenfranchisement of prisoners in the 18 September Scottish
Independence Referendum (by the outer and inner houses of the Scottish Court of Session and, on 24 July 2014, by the UK
Supreme Court, with reasons to be given at a later date). In this instance, the Scottish government has not even attempted to justify
the disenfranchisement of all prisoners, including prisoners that will be released before 24 March 2016, when an independent
Scotland is to be declared following a YES vote (according to the Scotlands Future White Paper). Instead, the government is
relying on a literal (rather than purposive) reading of the A3P1 stipulation, which refers to the choice of the legislature to rule out
its applicability to referendums (see the explanatory notes of the Scottish Independence Referendum (Franchise) Act). This is both
disappointing and revealing because it manifests an unprincipled approach to determining the franchise for the most fundamental of
choices in an independence referendum.
The UK Supreme Court in Chester and McGeoch [2013] UKSC 63 refrained from addressing the ramifications of the UKs
continuous breach of the rule of law. In contrast, the Parliamentary Committee on the Draft Voting Eligibility (Prisoners) Bill,
unequivocally asserted in its 18 December 2013 report, at [229], that the United Kingdom is under a binding international law
obligation to comply with the Hirst judgmentit would be completely unprecedented for any state that has ratified the European
Convention on Human Rights to enact legislation in defiance of a binding ruling of the European Court of Human Rights.
Since no amending legislation was included in the June 2014 Queens speech, it now looks highly likely that the May 2015 general
election will be held in continuous and defiant breach of the UKs international obligations. While, as the parliamentary committee
submitted, the UK has a long tradition of respect for and attachment to the rule of law, the almost nine-year refusal to comply with
the 2005 ruling of the Grand Chamber in Hirst (no. 2) has tarnished its record. It is a sad testament to the current standing of the
ECHR in the UK public discourse that none of the main political parties (nor indeed any of the main figures in any party) seem to
mind.
Dr Ruvi Ziegler is a Lecturer in Law at the University of Reading Law School. He is a frequent contributor to the OxHRH Blog.

Migrants Voting at the Local Level is a Human Right


By Nikolaos Sitaropoulos | 12th July 2014

According to a recent study by the Bundeszentrale fur politische Bildung, only 15 of the 28 EU member states allow categories of
resident migrants (third country nationals) to participate in local elections. Four of these states only allow migrants to vote but not
to stand for election. The results of the latest European Parliament elections, which were characterised by a boost of extreme, antimigrant parties, have made it even more difficult to publicly debate issues relating to migrants human rights, including voting, even
if these rights are enshrined in European law.
States reluctance to recognise migrants voting rights in their host countries is exemplified in the 1990 International Convention
on the Protection of the Rights of All Migrant Workers and Members of their Families, which only provides for migrants rights to
participate in public affairs, vote and run for office in their state of origin.
However, the Convention on the Participation of Foreigners in Public Life at Local Level, drawn up in the Council of Europe in
1992, expressly provides for, inter alia, migrants rights to vote and stand for election at the local level. The basic prerequisite set by
Article 6 of this treaty is migrants lawful and habitual residence in the host state for five years preceding the election. To date, this
treaty, in force since 1997, has been ratified by only eight member states (though five other states have signed but not ratified it).
It is difficult to comprehend European states cautiousness vis--vis this convention, given that it is a flexible treaty. For example,
it allows contracting states to be bound, if they wish, by only the first of the three chapters (entitled, Freedoms of expression,
assembly and association), which corresponds to classic freedoms that were long ago enshrined in international and European
human rights treaties. Also, two of the contracting states, Albania and Italy, have opted out of the third chapter, which concerns the
rights to vote and to stand for election in local authority elections.
Migrants effective integration into European host states is not really possible if they are excluded from the most important process
of a states democracy, that is, elections. A recent report on migrants integration in Europe by the Parliamentary Assembly of the
Council of Europe (PACE) actually stressed that most immigrants want to vote, want more diversity in politics and would be ready
to vote to back this up. In a subsequent resolution, PACE reiterated its earlier recommendation that member states ensure that
migrants have a say in the democratic process by granting them, in particular, the right to vote at [the] local level.
Despite these debates and recommendations, migrants rights to vote and to stand for election, at least at the local level, have
not yet attained a high profile and recognition in many European states. Arguably, this is due to the fact that established methods
of evaluating migrant integration in Europe tend to place democratic participation behind participation in the labour market and
education in terms of importance.
In a 2011 communication by the European Commission on the European agenda for the integration of non-EU nationals, migrants

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democratic participation appeared as a completely peripheral issue. This position is also reflected in developments in certain
European states. In Malta, for example, the countrys president reportedly stated last month that allowing migrants to vote in local
elections would be jumping the gun. In Greece, in February 2013, the supreme administrative court found unconstitutional a 2010
law that had provided, inter alia, for migrants rights to vote and stand for election at the local level.
Political and institutional actors in Europe should do their utmost to counter the current trend of viewing migrants who live, work and
contribute to the development of ageing European societies as a threat. Migrants voting rights are not just an indicator of but also
a prerequisite to their integration therein. Without voting rights, migrants cannot influence and fully participate in the democratic
societies in which they live nor effectively exercise their other human rights.
Nikolaos Sitaropoulos is the Deputy to the Director and Head of Division at the Office of the Council of Europe Commissioner for
Human Rights.

Where Have All The Expatriates Gone?


By Reuven (Ruvi) Ziegler | 11th March 2014

Participants in the 18 September 2014 Scottish independence referendum will be asked whether Scotland should become an
independent country. The UK Chancellor of the Exchequers pronouncement that Scotland will not be able to keep the pound,
and the EU Commission Presidents observation that it would be extremely difficult, if not impossible for Scotland to join the EU
(following Crawford and Boyles paper on, inter alia, the likely conditions for Scottish accession) have received great attention.
Conversely, the question who will and should participate in the referendum, determined by the Scottish Independence Referendum
(Franchise) Act, has hardly been debated. I have previously considered some challenges arising from the decision to impose a
blanket ban on electoral participation of prisoners in Scottish jails. Here, I wish to draw attention to the disenfranchisement of
United Kingdom citizens, formerly resident in Scotland, pursuant to Section 2 of the Act.
All democratic states set eligibility criteria for participation in elections of their institutions of government. Broadly speaking, these
criteria fall into two categories: individual competence and membership of the states political community. The latter criterion
is manifested by ubiquitous exclusion of non-citizen residents from national (and often also sub- or supra-national) elections.
Concurrently, some states impose residency requirements, which disqualify their expatriates during part or all of their period of

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absence.
Elsewhere, I critiqued the reasoning employed by the European Court of Human Rights in its Shindler [2013] ECHR 423 judgment
regarding the disqualification of UK expatriates from participation in UK parliamentary elections after fifteen years of residence
abroad, pursuant to the Representation of the People Act 1985. Crucially, eligibility for participation in the forthcoming referendum
does not mirror these criteria but, rather, those employed to determine eligibility for local government elections. Hence, Scottish
expatriates who have left Scotland in the last fifteen years are eligible to vote in UK parliamentary elections wherever they currently
reside, but will be excluded from the referendum.
The EU Commission is justifiably concerned about the effective disenfranchisement of EU citizens who exercise their treaty right
to freedom of movement and of residence. In its 29 January recommendations to member states, the Commission noted that [EU]
citizens residing in another Member State can maintain lifelong and close ties with their country of origin and may continue to be
directly affected by acts adopted by the legislature elected there and advised that the rationale of policies that disenfranchise
citizens should be re-assessed in the light of current socio-economic and technological realities.
The ECtHR jurisprudence and the EU Commissions recommendation address, in the main, electoral processes that affect the
governance of an existing political unit to which expatriates qua citizens retain the internationally recognised right to return. In
such circumstances, it is assumed that most of the states citizens reside therein and that the geographical boundaries of the
state are not affected. Independence referenda are different: they may lead to the creation of successor State(s), with ensuing
ramifications for citizenship-contingent privileges of expatriates. I argue that putative ab initio citizens of a putative State (pursuant
to internationally accepted criteria) are significant stakeholders in a transformative referendum that may bring that putative State
into being. Hence, the rationales for external voting in routine electoral processes apply a fortiori to a transformative referendum in
light of its fundamental nature and its long-term impact.
Dr Ruvi Ziegler is a Lecturer in Law at the University of Reading Law School. He is a frequent contributor to the OxHRH Blog.

Malawis Electoral Fiasco

By Danwood M Chirwa | 20th July 2014


Close to midnight on 30 May 2014, Prof Peter Mutharika was declared the winner of the fifth presidential elections in Malawi since
1994. This electoral contest was unusual in Malawis democratic era in at least two respects.
Firstly, the Electoral Commission took eight days and had to wait until the last hour of that period to declare the results. Secondly,
the declaration of the winner turned on the outcome of a court application pertaining to the interpretation of the power of the
Electoral Commission to audit the electoral results and, if necessary, to recount the votes, and the power of the courts to allow the
Electoral Commission an extension of time, beyond the statutorily-prescribed eight days, to continue its work of auditing the results.
These unusual events occurred due to the ineffectiveness of the Electoral Commission. In the run-up-to the elections, it was
accused of having failed to carry out the voter registration exercise properly. On election day, many polling centres did not have
electoral materials such as ink, ballot papers and voter registers. It was also widely reported that many centres did not have secure
ballot boxes.
In the days that followed, the Electoral Commission itself became conspicuously divided, with some Commissioners insisting that
the elections had not been tampered with and others admitting to the existence of substantial irregularities. These admissions
sparked the submission of a flurry of further electoral complaints before the commission and a series of court applications.
The growing constitutional crisis could be decomposed into the following: firstly, it related to the integrity of the electoral process in
so far as respect for whatever outcome the commission would sanction was concerned; secondly, the crisis related to the absence
of constitutional and other legal mechanisms regulating the conduct of government in the context of disputed electoral results, as
the Malawian Constitution has very tenuous transitional provisions.
The consolidated court case took a day to be heard, and the judge was left with a few hours to consider the arguments. The ruling
focussed on two issues. The first was whether the Electoral Commission had the power to embark on a vote recounting exercise
before declaring the final national results and without obtaining a court order. There was little to be said for the view that the
Commission did not have such power, given the broad constitutional powers that the Commission is entrusted with.
The holding that the Electoral Commission had the power to conduct a vote recount suggested that, on the second issue, the court
would decide in favour of an extension of time. It did not. Here, the issue was whether the Commission could, by a court order, be
allowed more time than the eight-day statutory period to consider all complaints pertaining to the results of the elections. The court
held that the electoral statute was clear that the results had to be declared within that period.

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In one sense, this judgment came across as a mockery to justice, as it appeared to give with one hand and take with another. It
held that the Commission had the power to conduct a vote recount but also that the Commission could not conduct the vote recount
because time had run out. Assuming that the results were fraudulent, the court was, in effect, allowing a statute to be used as an
instrument for perpetrating fraud.
The fundamental question the judge eschewed was whether a statutory provision which imposes a duty on a constitutional body
to fulfill its constitutional duties within a period that is unreasonable in a particular set of circumstances could be considered to be
valid. There is merit in requiring the Commission to declare results within eight days. However, it is not impossible to imagine a
situation in which the Commission may justifiably need more time to ensure free and fair elections.
Overall, this electoral fiasco underlined the importance of an independent, impartial and competent commission. To date, the
appointment process for the commissioners of the Commission remains highly political, dominated by the incumbent president.
More significantly, this disputed electoral process regrettably obscured the fundamental gains that Malawi has made since
embracing democracy in 1994.
Professor Danwood Mzikenge Chirwa is the former Head of Public Law at the University of Cape Town. He is also the founder and
Editor-in-Chief of the Malawi Law Journal and his research areas include Constitutional law, Childrens Rights and Human Rights.

A Watershed Case for African Human Rights: Mtikila and Others v. Tanzania
By Oliver Windridge | 17th February 2015

Mtikila and others v. Tanzania was a watershed case heard before the African Court on Human and Peoples Rights. The Court
rendered its judgment on 14 June 2013, with a further ruling on reparations on 13 June 2014. The case concerns three applicants:
two Tanzanian NGOs, the Tanganyika Law Society and Human Rights Centre and Reverend Christopher R. Mtikila. The Applicants
cases were broadly the same--that current Tanzanian election laws prohibiting independent candidates from running for public
office are in breach of various articles of the African Charter on Human and Peoples Rights, the International Convention of Civil
and Political Rights, the Universal Declaration on Human Rights and the rule of law.
The case is a watershed moment for African human rights, as it is the first case considered by the Court on its merits. It is also
significant that the Court found in favour of the applicants. In addition, the Courts subsequent Reparations Ruling was the first time
the Court considered the issue of compensation and reparations.
In 1992, amendments to the Tanzanian Constitution required all candidates for presidential, parliamentary and local government
elections to be members of and sponsored by a political party, effectively banning independent candidates from running for public
office. Mtikila spent the next 18 years pursuing cases through the Tanzanian domestic courts to have the ban overturned.
On 14 June 2013, the Court delivered the Judgement and unanimously found that Tanzanias ban on independent candidates
had violated Mtikilas Article 10 (free association) and Article 13(1) (right to participate freely in government) Charter rights and,
by majority, that the same ban violated Mtikilas Article 2 (right to enjoy rights in the Charter) and Article 3 (equality before the law)
Charter rights. In the Judgement, recalling its power to make orders of compensation or reparation, the Court noted that Mtikila had
reserved his right to elaborate on his claim for compensation or reparation but had not done so. The Court therefore did not make a
finding on the issue but did call upon Mtikila, if he so wished, to exercise this right.
On 13 June 2014, following written submissions from Mtikila and Tanzania, the Court considered the issue of compensation and
costs and rendered its Reparations Ruling. The Court found that despite having the power to make orders for compensation or
reparation, Mtikila had failed to provide adequate evidence of the losses and expenses claimed and therefore rejected his claims.
The Court also noted that Tanzania continued to maintain that the Judgement was wrong. The Court expressed its concern
at this position, especially since it was compounded by Tanzanias failure to report to the Court on the measures it is taking to
comply with the Judgement. The Court ordered Tanzania to report to the Court within six months from the date of the ruling on the
implementation of the Judgment (around January 2015).
This case contains many firsts it is the first case to be considered on its merits, the first finding in favour of the applicant and the
first matter to consider the issue of compensation and reparations. Achievement in this case must be put in context of the restrictive
rules on direct access for individuals and NGOs to the Court, meaning only seven African Union member states currently allow their
citizens direct access to the Court.
However, through this case the Court demonstrated that once a case is admissible, the Court is willing to consider it in detail and is
unafraid to find in favour of the applicant. The Courts clear position on its power to award damages should be also be welcomed.
Of most concern going forward in the new era of compliance is Tanzanias apparent unwillingness to acknowledge its requirement

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to comply with the Judgement. Clearly, in view of Tanzanias responses so far, the issue of compliance should be of serious
concern to the Court, and changes to Tanzanias electoral laws appear a while off.
Oliver Windridge is a British lawyer specialising in international criminal and human rights law, currently based in The Hague,
Netherlands. He is founder and chief contributor of The ACtHPR Monitor, a website and blog dedicated to news, comment and
debate on the African Court on Human and Peoples Rights.

McCutcheon v FEC: The Harvest of Pernicious Seeds


By Alecia Johns | 20th April 2014

The US Supreme Court very recently handed down its decision in McCutcheon v Federal Election Commission 572 U.S. ___
(2014), undoubtedly the most important campaign finance ruling since its controversial 2010 judgment in Citizens United 58 U. S.
____ (2010).

In a 5-4 decision, the Court ruled to abolish aggregate contribution limits, which restricted how much an individual donor may
contribute in total to all candidates or committees within a given election cycle. However, the Court left intact base limits, which
restrict the amount a donor may contribute to a single candidate or committee. Therefore, provided that contributions to single
candidates and committees respect the requisite base limits, an individual donor may potentially contribute millions in aggregate
support for a particular party.
Not surprisingly, many have decried the decision as exacerbating the already unequal influence and power possessed by wealthy
donors. In a powerful dissent, Breyer J lamented that the decision eviscerates our Nations campaign finance laws, leaving a
remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

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The pluralitys highly contested decision is partly grounded on two premises, drawn in great measure from the Courts previous
rulings in Buckley v Valeo 424 U.S. 1 (1976) and Citizens United. As long as these two premises remain intact, future attempts to
uphold campaign finance regulations will prove equally Sisyphean in nature:
[1] The relative equalisation of political speech and influence among citizens is not deemed to be a legitimate state
interest
In Buckley the Court held that: The concept that the government may restrict the speech of some elements in our society in order
to enhance the relative voice of others is wholly foreign to the First Amendment. Following Buckley, the Court in McCutcheon noted
that Congress may not seek to regulate contributions in an attempt to restrict the political participation of some in order to enhance
the relative influence of others. The only legitimate state interest was therefore held to be the prevention of corruption.
By deeming any equalisation rationale an impermissible state objective, the Court ignores the First Amendment rights of those
whose voices are drowned out in the wake of the undue influence exerted by wealthy donors. The dissent sought to take the rights
of such persons into consideration by arguing, quite circuitously, that the state interest in anti-corruption is itself rooted in the First
Amendment, given the public interest in collective speech. This argument was, of course, rejected by the plurality. The fact is,
until the equalisation of influence is explicitly deemed a legitimate state interest, the Court remains at liberty to further the First
Amendment interests of wealthy donors, without taking into account the corresponding, diminishing effect on the political influence
of those less fortunate.
[2] The narrow definition of corruption as limited to quid pro quo and excluding general influence and access
In limiting the States objective to the prevention of corruption, following Citizens United, the Court further circumscribed the kind
of corruption which the State may seek to prevent: quid pro quo agreements, defined as the exchange of an official act for money.
The Court held that this is to be distinguished from the permissible general influence and access which a donor may receive on
account of his contribution. The Court therefore held that the main mischief to be prevented was the contribution of large amounts
of money to individual candidates. On the other hand, the broad-based support of a political party, by giving within the base limit
to a large number of its candidates, was remarkably held not to possess a potentially corrupting influence. The dissent objected to
this narrow definition of corruption, noting that in the Courts previous rulings (with the exception of Citizens United), corruption was
understood not only as quid pro quo agreements, but also as undue influence on an officeholders judgement.
The pluralitys untenably narrow definition of corruption paves the way for future successful challenges to the constitutionality of
other campaign finance regulations. This is underscored when one considers the Courts holding that, in drawing the admittedly
vague line between general influence and quid pro quo, the Court will err on the side of protecting political speech rather than
suppressing it. However, the irony is that, in its rejection of the equalisation rationale, the Courts approach to protecting political
speech, invariably suppresses the voices of those unable to match the financial resources of wealthy, well-connected donors.
Dr Alecia Johns completed her D.Phil. in Law from the University of Oxford in 2015.

Contributions Caps and the First Amendment


By Matthew Tyler and Claire Overman | 5th May 2014

On April 2, 2014, the United States Supreme Court struck down aggregate campaign contribution limits in federal elections in their
ruling on McCutcheon v. Federal Election Commission.
While it will likely be years before the ramifications of McCutcheon are fully understood, the medias reaction to the decision has
generally been negative, with predictions of increased influence by the wealthiest Americans especially in favour of businessfriendly Republican candidates. Moreover, many have found the Courts association of political free speech with spending to be
troubling, especially as it could potentially undermine the influence of the least well-off.
There are, however, reasons to believe that the decisions marginal effect the changes in the political landscape from the status
quomay be less drastic than they have been portrayed. In 2012, only 646 people reached the federal aggregate spending cap.
And, in any case, it is possible that political donors with money to spare may choose to use super political action committees,
rather than direct contributions to gain political influence. These super PACs are organizations that can collect and spend unlimited
amounts of money from individuals but which must operate completely independently from political campaigns.
It has been suggested that the judgments ruling that levelling political influence did not fall within the ambit of the First Amendment
is troubling, as it effectively marginalises the right to political expression of the less well-off. However, UC San Diego political
scientist Gary Jacobson has argued that because political incumbents already have much of the visibility that money buys,
spending and contribution caps may actually hurt challengers, who get much higher marginal returns on campaign spending. Given

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that the re-election rate of incumbents in the U.S. House and Senate in 2012 was 90%, despite abysmally low approval ratings,
opening up challengers to a broader national base of big-spending political contributors may allow for more electoral competition.
The argument that spending caps necessarily ensure that an individuals First Amendment right is protected, regardless of means,
is not therefore self-evident.
Further, the participation of Americans in political spending has already been very narrow only one half of one per cent of
Americans gave more than $200 to political campaigns in 2012. In this regard, it is clear that, whilst campaign contributions per
se constitute the type of activity that falls within the scope of the First Amendment, they are not necessarily a core example of
the type of expression that this right normally engages. That being said, candidates donor bases appear to comprise an array of
Americans, and campaign donations do follow certain political lines: in 2012, 57% of President Obamas donors contributed less
than $200, although only 24% of Mitt Romneys donors contributed under $200. It would therefore be wrong to suggest that there is
no connection whatsoever between political influence and means.
Finally, many potential big donors may chose to stay out of the political arena to avoid jeopardizing their business with public
discontent. Indeed, the recent ouster of Brendan Eich, the CEO of Mozilla who came under public scrutiny after his contribution to
an anti-same sex marriage campaign surfaced, may scare away big would-be political donors. This again serves to undermine the
argument that the Courts decision in McCutcheon will have the negative effect on First Amendment rights, as some fear.
Matthew Tyler is a candidate for an M.A. in political science at the University of Georgia in Athens, Georgia, United States, and a
2014 National James Madison Graduate Fellow.
Claire is a former Editor and Communications Manager of the Oxford Human Rights Hub. She will be commencing pupillage at One
Brick Court in October 2015.

Is An Obsession With Foreign Investment Eroding Democracy in Papua New Guinea?


By M P | 29th September 2014

Often described as an island of gold floating on a sea of oil, Papua New Guinea (PNG) is one of the top ten resource-dependent
economies in the world. But robust economic growth rates have not led to any decrease in PNGs poverty rate over the last 20
years.
Although the benefits of economic growth are not reaching the vast majority of the population, Prime Minister Peter ONeill has
repeatedly cited the need to create a stable political environment to boost foreign investor confidence. Since ascending to power,
ONeill has endlessly promoted political stability to justify a daunting array of anti-democratic measures which cynics perceive as a
thinly veiled attempt to prolong his own leadership.

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First, he has amended the Constitution to extend the period, during which any vote of no confidence against the Prime Minister is
prohibited, from 30 months previously to now a total of 43 months out of the 60-month (five-year) term between elections. A second
change has been to reduce the minimum number of parliamentary sitting days to just 40 days per year and to increase the number
of MPs who must sponsor any motion for a vote of no confidence. A further proposed constitutional amendment would require that,
in the event of a vote of no confidence against a Prime Minister, the subsequent Prime Minister must be a member of the same
political party as the outgoing Prime Minister.
Further measures include sacking the Treasurer and Attorney-General, as well as Ministers for Petroleum & Resources, Higher
Education and Industrial Relations, all within the last three months. Although such action could be perceived as undermining
political stability, the reason given in each case was the need for stability. In the case of the Treasurer, his sacking followed
his opposition to a proposed loan that would raise national debt to a level he felt to be irresponsibly high. In response, ONeill
appointed himself Acting Treasurer and unilaterally approved the loan. The Ombudsman has since referred ONeill to the Public
Prosecutor for alleged misconduct in bypassing proper parliamentary processes for approving the loan. The Attorney-General was
sacked for opposing ONeills proposed Constitutional amendment relating to votes of no confidence. Just days earlier, ONeill had
commended the Attorney-General as one of the best-performing Ministers.
More worryingly, ONeill has also disbanded the anti-corruption Task Force he had himself set up. This occurred immediately after
it recommended police action on evidence that ONeill had improperly authorised approximately USD30 million in payments to a
law firm. ONeill further sacked the Police Commissioner and Deputy Commissioner who signed the arrest warrant against him. The
National Court recently granted a permanent stay against the disbandment of the Task Force.
ONeills fixation on political stability is all the more curious given that he took power in controversial circumstances, which
precipitated a constitutional crisis. The Supreme Court ruled in re Reference to Constitution section 19(1) by East Sepik Provincial
Executive [2011] PGSC 41 that ONeill had failed to meet constitutional requirements when claiming the Prime Ministership. In
response to this decision, ONeill imperilled the separation of powers by increasing parliamentary power to remove members of
the judiciary. However, he repealed this legislation after a public outcry and the resolution of the constitutional crisis at the 2012
election.
In any event, ONeill now enjoys unprecedented support on the floor of Parliament, and the Opposition retains only three seats
out of the total 111. Several former Opposition members have crossed the floor since the election, stating that it was necessary
because ONeill made it difficult for opposition MPs to access funds for their constituencies.
By punishing any traces of dissent within the ranks of government, dismissing senior officers exercising independent oversight of
prime ministerial action and removing any effective voice of Opposition on the floor of Parliament, ONeill has seriously curtailed
the publics right to information, which could properly influence their vote. In the words of Article 25 of the International Covenant
on Civil and Political Rights, each of these measures appears to be an unreasonable restriction on the right to free expression of
the will of the electors. Adhering to human rights principles of transparency and accountability is particularly crucial in a young and
fragile democracy seeking to strengthen the rule of law.
Foreign investors have responded to this ongoing corrosion of democracy by continuing to call for stability no doubt music to the
Prime Ministers ears, but a setback for the countrys adherence to human rights.
The author of this piece wishes to remain anonymous, but can be contacted through our site (oxfordhumanrightshub@law.ox.ac.uk)

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130

Introduction Gautam Bhatia

131

Constitutional Protection for the Right to Strike in Canada

132

A Human Rights Defence of Hong Kongs Occupy Central

133

The Violence Must Stop Abuse of Police Power in Hong Kongs Democracy Protests

134

Why the U.S. Needs a Magnitsky Act for Venezuela

135

The Criminalization of Protests: Repression and Human Rights Abuses in Venezuela

136

The Right to Peaceful Protest in Ethiopia

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Right to Protest: Developments at the Inter-American and UN Systems

138

Egyptian Human Rights Groups Face Difficult Choices After Al-Sisis Ultimatum

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Repression of Nonviolent Activism in Syria

140

Constitutional Court of South Africa: Blunting the Impact of Electoral Law on Freedom of
Expression

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Racial Discrimination Act and Free Speech Carte Blanche or Fair and Reasonable Where are
Human Rights in all This?

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Introduction

By Gautam Bhatia
The numerous political and social upheavals that have convulsed the globe over the last few years have ensured that the freedom
of speech, assembly and association remain at the forefront of international legal and political discourse. Speech, assembly, and
association may be compendiously clubbed together under the title of expressive rights i.e., they are rights (or freedoms) that
enable broad and egalitarian participation within the democratic public sphere. They are often found next to each other in bills of
rights (for instance, the Constitution of India), or even as part of the same right (the United States Bill of Rights) and as Courts
have often recognised they often speak to the same concerns.
A number of contributions that make up this chapter focus on State repression of expressive rights. In their pieces, spanning
four continents, Mathias Cheung (The Violence Must Stop Abuse of Police Power in Hong Kongs Democracy Protests p 133),
Ezequiel Vasquez-Ger (Why the US Needs a Magnitsky Act for Venezuela p 134), Malu Halasa (Repression of Nonviolent
Activism in Syria p 139), and Solomon Tekle Abegaz (The Right to Peaceful Protest in Ethiopia p 136) highlight the curtailment of
protests and demonstrations by executive power, ostensibly in violation of constitutional norms. Juana Kweitel (Right to Protest:
Developments at the Inter-American and UN Systems, p 137) adds a transnational gloss to this, reflecting upon efforts at InterAmerican and UN forums to strengthen (or even reinvent) the legal mechanisms for effectively protecting the right to protest.
Often, however, it is not police action, but the law itself, enacted by a competent legislature, which adversely affects expressive
rights. This gives constitutional courts an opportunity to examine the question from the perspective of their respective bill of rights.
A good example is Prof. Judy Fudges piece (Constitutional Protection for the Right to Strike in Canada p 131). It highlights the
Canadian Supreme Courts understanding of the interconnections between free speech and freedom of association as expressive
rights. The Canadian Supreme Court struck down a provincial legislation that designated all public sector workers as essential,
and prohibited them from striking, by holding the law to be too broad and invasive of expressive rights. Mathias Cheungs post (A
Human Rights Defence of Hong Kongs Occupy Central p 132) extends the analysis to Hong Kongs occupy demonstrations,
by questioning the invocation of public order to stifle free assembly. Andrew Wheelhouse (Constitutional Court of South Africa:
Blunting the Impact of Electoral Law on the Freedom of Expression, p 140) does the same in the context of the South African
Constitutional Courts refusal to apply ordinary defamation law in order to curtail election speech. What unites both these pieces is
an argument for rigorous judicial review, and the placement of a high burden upon the government to justify how its restrictions are
necessary and proportionate in order to achieve its stated goals (protection of public health and safety in the Canadian case, that of
public order in Hong Kong, and that of free and fair elections in South Africa).
While expressive and associational rights can be curtailed by direct restrictions, they are equally undermined by indirect ones as
well. Heather McRobies piece (Egyptian Human Rights Groups Face Difficult Choices after Al-Sisis Ultimatum p 138) discusses
the Mubarak-era law in Egypt that requires NGOs to register with the government. While registration does not quell speech
by prohibition or penal sanction, it opens up (potentially) politically unpopular organizations to surveillance and scrutiny, and
undoubtedly casts a chilling effect upon their functioning. The link between expressive rights, anonymity and the chilling effect has
been recognised worldwide (the American Supreme Court decision in NAACP vs Alabama 357 U.S. 449 (1958) remains the locus
classicus).
In examining the scope of State law that might curtail expressive rights, it is also important to note that in divided, stratified and
unequal societies, the unfettered exercise of expressive rights by some might lead to the inability of others to exercise their rights to
speech, assembly and association. This is the focus of Dr Liz Currans piece (Racial Discrimination Act and Free Speech Carte
Blanche or Fair and Reasonable? p 141), which chronicles moves by the present Australian government to narrow and limit the
hate speech provisions in Australias Racial Discrimination Act. Curran highlights a basic concern that racist speech can serve to
endorse and entrench existing inequalities, and the result will be that People will hide away, people will cower, people will be afraid.
Is this not also a threat to the free speech?
With protests against repressive regimes showing no signs of abating, ongoing clashes between proponents of unfettered speech
and advocates of multicultural respect, and continuing issues surrounding global labour in light of the worldwide recession, it is
clear that issues pertaining to expressive rights will continue to be on the table in the times to come.
Guatam Bhatia is a legal academic, and practicing lawyer based in New Delhi, India. His book Offend, Shock or Disturb: Free
Speech under the Indian Constitution, will be published by OUP in August 2015.

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Constitutional Protection for the Right to Strike in Canada


By Judy Fudge | 6th February 2015

In a momentous decision, released on 30 January 2015, the Supreme Court of Canada ruled that the right to strike is protected by
the Canadian Charter of Rights and Freedoms guarantee of freedom of association.

Writing for the majority (5:2), Justice Abella asserted:


The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour
relations is supported by history, by jurisprudence, and by Canadas international obligations... The right to strike is not merely
derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this
conclusion constitutional benediction (Para. 3).
Justice Abella began her decision by referring to the Courts jurisprudence since the Alberta Reference, where a majority of the
Court held that neither the right to collective bargaining nor to strike were protected by the Charter, remarking that clearly the arc
bends increasingly towards workplace justice (Para. 1).
The crucial issue in Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4 was the constitutionality of provincial
legislation that unilaterally designated public sector workers as essential and prohibited them from striking. The legislation did not
provide a process for an independent tribunal to review whether or not the work performed by the designated workers was, in fact,
necessary to prevent danger to life, health and safety. Nor did it provide a meaningful process for resolving collective bargaining
disputes that went to impasse.
Following closely on the heals of Mounted Police Association of Ontario v. Canada 2015 SCC 1, in which the Supreme Court of
Canada made it clear that the test of whether or not the constitutionally protected right to bargain collectively had been violated was
substantial interference, the question the Court had to resolve in the Saskatchewan case was whether or not strike action was an
essential part of collective bargaining. Deploying the approach adopted in Health Services 2007 SCC 27, which established that
collective bargaining was protected under freedom of association in the Charter, the Court referred to the history of labour relations
and collective bargaining law in Canada, canvassed the gamut of international and comparative law regarding the status of the
right to strike and reviewed its own jurisprudence to conclude that the right to strike was a constitutionally protected component
of collective bargaining. Recognising that protecting health and safety was a legitimate and pressing objective, Justice Abella
nonetheless held that the provincial government had failed to establish that the means that it adopted to achieve this goal were
minimally impairing of the constitutional right.

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More remarkable than the actual result were Justice Abellas sources, which ranged from the European Court of Human Rights
path-breaking decision in Demir and Baykara [2008] ECHR 1345, through international human and labour rights, to Anatole
Frances aphoristic fallacy: The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in
the streets, and to steal bread (Para. 56). Unlike Fraser 2011 SCC 20, where the majority responded point by point to the opinion
of Justice Rothstein, on this occasion Justice Abella did not let his cantankerous dissent, which extolled the deferential approach
taken in the Alberta Reference and alluded to the employer-led controversy over the status of the right to strike at the International
Labour Organization, set the agenda.
Public sector workers in Canada have obtained some protection from the Charter against governments trampling on their rights.
However, the same cannot be said for their counterparts in the private sector. In the Saskatchewan case, the Court held that
changes to collective bargaining legislation that made it more difficult for employees to secure a certified bargaining representative,
which is what gives workers in Canada the right to resort to protected strike activity, did not substantially interfere with the freedom
to freely create or join association (Para. 100). What the constitutional protection of the right to strike means for workers, such as
the agricultural workers in Fraser, who have no statutory protection from dismissal or retaliation when they exercise their right to
strike, is not clear. As yet, the most vulnerable workers have found the Charters protection elusive.
Professor Judy Fudge, France-ILO Chair/Fellow, IEA Nantes, Professor, Kent Law School

A Human Rights Defence of Hong Kongs Occupy Central


By Mathias Cheung | 16th August 2014

With the Hong Kong Government set on introducing an undemocratic electoral reform in the coming months, Professor Benny Tai
has proposed to organise a peaceful assembly, Occupy Central with Love and Peace. It has been condemned and denounced as
an affront to the rule of law.
The background to this saga is the Hong Kong Governments proposed electoral reforms. With the imprimatur of Beijing in 2007,
the Government now plans to introduce universal suffrage for Chief Executive (head of government) elections, but candidates
must be nominated by an unaccountable nominating committee. This carries the imminent risk that undesirable candidates will
be screened out, contrary to Article 26 of the Basic Law and Article 25 of the International Covenant on Civil and Political Rights
(ICCPR). Occupy Central is a response to this undemocratic move, but is seen as an act of civil disobedience due to possible
contravention of the Public Order Ordinance.
The Government has gone all out in undermining the legitimacy of Occupy Central. Chief Executive C. Y. Leung has threatened to
crack down on the movement, condemning it as illegal. The Secretary for Security has claimed that the movement violates the rule
of law, as have officials in Beijing.
Simultaneously, a pro-Beijing Alliance has launched an anti-Occupy Central signature campaign in the name of rejecting violent
and unlawful activities. With Government officials and police officers signing, it seeks to turn this into a game of numbers, claiming
an overwhelming 1.1 million signatures in opposition to the 792,808 supporters of Occupys earlier civil referendum.
The argument based on the rule of law is seriously under-assessed. The rule of law is not the sum total of the effective application
of all enacted rules of law. If so, Nazi Germany would be a paradigm. There is a difference between the Governments rule by law
mentality and genuine rule of law. A democratic society upholds the maintenance of the rule of law that embraces a willingness
to oversee executive action and to refuse to countenance behaviour that threatens basic human rights (see Lord Griffiths in R v
Horseferry Road Magistrates Court, ex parte Bennett [1993] UKHL 10).
In the case of Occupy Central, the rule of law entails the protection of the constitutional freedom of expression and peaceful
assembly enshrined in Article 27 of the Basic Law from Government crackdown. Article 11 of the Basic Law provides that no law
enacted by the legislatureshall contravene [the Basic Law]. If subordinate statutory law (like the Public Order Ordinance) poses
an absolute bar on Occupy Central and prompts the arrest of participants, it disproportionately restricts the overriding constitutional
right to peaceful assembly. The enforcement action may be unlawful and unconstitutional.
Therefore, it is by no means clear that the statutory restrictions are lawful, nor that a peaceful assembly in public space (without any
trespass on private property) on the pivotal issue of democracy, is by definition unlawful. Indeed, the Human Rights Committees
Concluding Observations in 2013 expressed concerns over the application in practice of certain terms contained in the Public
Order Ordinance, inter alia, disorder in public places or unlawful assembly, which may facilitate excessive restriction to Articles 19
and 21 of the ICCPR, and the increasing number of arrests of, and prosecutions against, demonstrators.
General Comment No. 34 makes it clear that public order may never be invoked as a justification for the muzzling of any advocacy
of multi-party democracy, democratic tenets and human rights. As the ECtHR put it in Kuznetov v Russia Application no. 10877/04,

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in a democratic society based on the rule of law, the ideas which challenge the existing order must be afforded a proper opportunity
of expression through the exercise of the right of assembly.
The signature campaign will not prevail, for it is precisely when a minority voice is being subdued that the law must step in to
protect fundamental rights. The rule of law, properly understood, does not provide an argument against Occupy Central, but one in
favour of protecting it to a proportionate extent. The current House of Commons Inquiry into the implementation of the Sino-British
Joint Declaration ought to focus on the protection of rights and freedoms in Hong Kong as precipitated by Occupy Central.
Mathias Cheung is a recent BCL graduate. He is currently a research assistant at Oxford University and a BPTC student at City
Law School.

The Violence Must Stop Abuse of Police Power in Hong Kongs Democracy Protests
By Mathias Cheung | 30th September 2014

In ruling out genuine choice in all future Chief Executive elections in Hong Kong, the Government has done violence to democracy.
Now, the Government is doing violence to peaceful protesters in dispersing them.

In defiance of the undemocratic decision by Beijing on 31 August, pan-democrats have vowed to launch the Occupy Central with
Love and Peace movement. Students took to the frontlines last week by organising a classroom boycott that culminated in a
peaceful assembly outside the Government Headquarters. Occupy Central officially began as the crowds surged and the police
started cracking down on the protesters.
I have written earlier that the rule of law ought to protect such peaceful assemblies. Sadly, as tens of thousands assemble
peacefully on the streets of various districts, riot police have been deployed to disperse the crowds violently. They have decided to
fight peace with violence by unlawfully employing:
pepper spray;
tear gas;
baton charges; and
arrest and unreasonable detention without charge.

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Appalling scenes and footage of police violence have been spawned across social media. Even the elderly were not spared, being
pepper-sprayed at point blank range. Have they forgotten that measures of crowd control should not be used by the national
authorities directly or indirectly to stifle or discourage protest (Austin v UK [2012] ECHR 459 [68])?
The polices conduct is a blatant violation of international human rights law. The peaceful protesters enjoy the fundamental right
to life and right of peaceful assembly, protected by Articles 6 and 21 of the International Covenant of Civil and Political Rights as
incorporated by the Basic Law. Article 2 of the UN Code of Conduct for Law Enforcement Officials requires the police to protect
human rights, and under Article 3 they may use force only when strictly necessary.
Unlike the riots of 1967, it is simply unnecessary, disproportionate and unlawful to repeatedly use pepper spray and tear gas to
restrict the rights of peaceful, unarmed protesters. Principle 13 of the Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials provides that in the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall
avoid the use of force. Indeed, the State has a duty to facilitate peaceful assemblies, with a presumption against limitations on
assemblies (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns [119]).
As emphasised in Amnesty Internationals Understanding Policing at p.131, non-lethal riot control devices can result in serious
injury and even death. The UN Special Rapporteur on the Situation of Human Rights Defenders, Margaret Sekaggya, has rightly
criticised violent means to disperse peaceful protesters, as this conduct violates the Governments responsibility to protect civil
society actors.
The violence must stop. The acquiescence of the international community must also stop. As the Director of Amnesty International
Hong Kong rightly pointed out, we are looking at a violation of international law. The UN Human Rights Committee must act.
Meanwhile, let every police officer know this: obedience to superior orders shall be no defence (Principle 26 of the Basic
Principles). The real law-breaker is the one who attacks peaceful citizens, and it is in times like these that the law must protect the
people from abuse.
Mathias Cheung is a recent BCL graduate. He is currently a research assistant at Oxford University and a BPTC student at City
Law School.

Why the U.S. Needs a Magnitsky Act for Venezuela


By Ezequiel Vzquez-Ger | 29th March 2014

It has been a month since the Venezuelan people took to the streets to protest against the precarious situation in which the country
is currently living. According to the UN Human Development Index, the murder rate in the country is the fifth highest in the world;
annual inflation rates are currently over 50 percent. Furthermore, Transparency International has ranked Venezuela as the most
corrupt country in the region, and Freedom House ranked the country 168th (out of a total of 196) in its 2013 Global Press Freedom
Rankings. In its 2014 Human Rights Report, Human Right Watch asserted that the Venezuelan judiciary has largely ceased to
function as an independent branch of government.
What began as peaceful demonstrations led by young students turned into an unmanageable situation, marked by the deaths of
at least twenty-four people, the arbitrary detention of hundreds of students, the arrest of one of the opposition leaders, Leopoldo
Lpez, and a series of human rights violations of a magnitude never before seen in the country.
The U.S. Governments response to this situation has been adequate, but it would be improved if the political willingness to
implement human rights principle-based actions were in place. Both President Obama and the State Department have condemned
what is happening and have urged the Venezuelan government to release every arrested student. But statements are not enough.
What the Venezuelan people need from the international community, and especially from the U.S. (where wealthy Venezuelans
often spend their time and money), are concrete sanctions. But instead of pursing sanctions that would affect the whole country,
such as oil sanctions, the U.S. should start by imposing individually-targeted sanctions against the specific individuals within the
government who are responsible for the assassination of protesters, media censorship and human rights violations. The precedent
for this kind of sanctions already exists in the form of the Sergei Magnitsky Rule of Law Accountability Act (the Magnitsky Act).
Sergei Magnitsky was a Russian lawyer who was arrested by Russian authorities in 2008 while he was investigating a corruption
case. Magnitsky died in prison after being detained and tortured for 358 days. However, his death did not go unpunished. In
December 2012, the U.S. Congress passed the Magnitsky Act, a law that required the White House to revoke the visas and freeze
the assets of the Russian public officials involved in his death. The premise of the law is that many of the human rights violations
occurring in the world involve money, and that money often ends up in bank accounts, properties and businesses in the U.S.
During the last fourteen years, soaring oil prices and a lack of strong institutions in Venezuela led to shockingly high levels of
corruption. Many of the Venezuelan officials who have benefited from this corruption are also frequent travellers to the U.S. and

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own properties on U.S. soil. Several of Venezuelas top rulers include people identified as drug kingpins by the U.S. Treasury
Department. Many other Venezuelan public officials are being investigated by the U.S Justice Department for fraud, money
laundering and corruption.
A thorough investigation of the murders and human rights violations that have occurred in Venezuela in recent weeks would likely
reveal that many of the military and police officials with direct responsibility for what has happened probably also possess U.S.
visas, bank accounts and properties. By targeting these individuals and blocking them from enjoying their illicitly-gained assets, the
U.S. would be in a unique position to effectively combat human rights violations in Venezuela.
Fortunately, the U.S. Congress is already promoting these kinds of efforts. At some point over the next few days, the Senate will
vote on a bill introduced by Senators Rubio and Menndez, which, among other things, urges the President to immediately impose
targeted sanctions, including visa bans and asset freezes, against individuals involved in planning, facilitating or perpetrating gross
human rights violations in Venezuela.
Human rights concerns are universal and should not be limited to the internal affairs of any country. If the U.S. can take steps to
prevent the violations in Venezuela from continuing, such as through a Magnitsky-style law, it has a responsibility to act.
Ezequiel Vzquez-Ger is an economist and political analyst based in Washington DC, with expertise in human rights and anticorruption advocacy campaigns.

The Criminalization of Protests: Repression and Human Rights Abuses in Venezuela


By Manuel Casas | 15th April 2014

In Venezuela, anti-government protests are being brutally repressed; many demonstrators have been jailed, with some believed to
have been tortured.

On February 12, 2014, university students opposed to the current government carried out a rally in Caracas. This date was
purposely chosen for the rally because February 12th is Youth Day in Venezuela. Youth Day commemorates a battle in the struggle
for independence where, due to lack of regular soldiers, university students were forced to join the fray. Even though they were
outnumbered, they achieved victory.
The rally set to finish at the Prosecutor Generals office sought, amongst other things, the freedom of several students who had

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been jailed for protesting in the western Venezuelan state of Tchira. The protesters who attended the rally were repressed with
the usual mix of tear gas, rubber bullets and water cannons. This sort of reaction is common in Venezuela. However, what followed
is not: members of Sebin, the Venezuelan Intelligence Service, opened fire and killed two people, Juan Montoya, a member of the
governments paramilitary forces, known as colectivos, and Bassil Dacosta, a student.
Since the events of February 12th of this year, the government has de facto criminalized protesting a right established in the
Venezuelan Constitution. The following are the most alarming of the steps the government has taken to do so.
First, protests have been repressed with live ammunition and excessive force, in general, both by official security forces and by
paramilitary colectivos. This has resulted in a death toll of 39 and more than 600 injured. Tear gas and water cannons are now
considered mild, as beatings, seizures and detentions have become customary.
Second, over 2200 protestors have been detained, and there have been several cases of reported abuse and torture of detainees.
One detainee claims to have been sodomized with a rifle barrel, and many state that they suffered electric shocks to their testicles
or were beaten with batons wrapped in foam (in order to avoid visible bruising).
There are also political prisoners amongst those incarcerated, most notably, Leopoldo Lpez, leader of the Venezuelan opposition
party, Voluntad Popular, and democratically-elected mayors Enzo Scarano and Daniel Ceballos (the mayor of San Cristobal, the
capital of Tchira State, where the protests began). Furthermore, Maria Corina Machado, a congresswoman, has been stripped
of her seat in Congress and threatened with prosecution for partaking in and promoting the violent actions generated by fascist
sectors. The high politicization of the Venezuelan courts renders the prospects of obtaining justice dim.
Third, there have been severe violations of freedom of expression: NTN24, a Colombian cable channel, was swiftly forced off
the air following its extensive coverage of the rally on February 12th (it was the only news outlet with programming available in
Venezuela to do so). The government also threatened to expel CNN journalists, cancelling their license, only to reinstate it shortly
afterwards. The Journalists Union has reported more than 150 cases of attacks against journalists, including physical assaults,
detention and theft of equipment, such as cameras, since the February 12th rally.
Fourth, high-ranking government officials have used hate speech. The President, Ministers and state Governors have continually
used aggressive and hate-inducing language when referring to protestors, claiming that they are fascists, heirs of Hitler, and that
they have no love for the motherland. On March 5th, the President called for the colectivos to defend the country, inviting them
to put out any flame that arises. Previously, Carabobo State Governor Francisco Ameliach tweeted to the colectivos to await the
order for the fulminating counter-attack. Needless to say, these statements have resulted in the loss of life.
In sum, the high levels of violence used to repress generally peaceful protests, paired with the widespread detention of protestors,
demonstrate that the Venezuelan government is attempting to criminalize the right to protest and is committing grave human rights
violations in the process.
Manuel Casas is an Assistant Professor of Constitutional Law at Universidad Catlica Andrs Bello and a practicing lawyer who
has represented several of the students detained during the recent protests in Venezuela.

The right to peaceful protest in Ethiopia


By Solomon Tekle Abegaz | 25th May 2014

Ethiopia is currently witnessing a wave of peaceful demonstrations from political parties, student groups and others. One such set
of demonstrations took place between the 25th and 29th of April. Oromo students at Ambo University of the Oromia Regional State
were opposing the Integrated Master Plan of Addis Ababa (a plan to expand the city to some parts of the Oromia Regional State).
The dark side of the story is the reaction towards this movement from the ruling party (EPRDF). More than 30 people have been
killed during the protests, with several others wounded and incarcerated. It is unacceptable for life to be claimed in this way when
people exercise their fundamental rights and freedoms. The demonstrations and the response from the government reveal the
need to enforce domestic and international human rights norms applicable to Ethiopia.
Article 30(1) of the Constitution of the Federal Democratic Republic of Ethiopia (FDRE) guarantees to everyone the right to
assemble and to demonstrate together with others peaceably and unarmed, and to petition. The only limitation is that the right
cannot be used for purposes of defamation or violation of laws prohibiting any propaganda for war and any public expression of
opinions intended to injure human dignity. Furthermore, Ethiopia is a state party to numerous global and regional human rights
conventions that guarantee freedom of assembly and expression.

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Regarding the accountability of law enforcement officials, the Human Rights Committee urged states to take all necessary
measures to prevent any excessive use of force by the police, urging that rules and regulations governing the use of weapons
by the police and security forces be in conformity with the United Nations Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials; that any violations of these rules be systematically investigated in order to bring those found to have
committed such acts before the courts; and that those found guilty be punished and the victims be compensated. On the other
hand, article 74 of the Criminal Code of Ethiopia 2004 provides for a legal basis on which enforcement officials can be held liable
for enforcement of superior orders when such orders constitute a crime such as in cases of homicide, arson or any other grave
crime against persons, or national security or property, essential public interests or international law.
In addition, there are judicial and quasi-judicial mechanisms to protect citizens from violation of human rights by enforcement
officials. Article 37(1) of the FDRE Constitution guarantees to everyone the right to bring a justiciable matter to, and to obtain a
decision or judgment by, a court of law or any other competent body with judicial power. Furthermore, the Ethiopian Human Rights
Commission Establishment Proclamation No. 210/2000 imposes a duty on the Ethiopian Human Rights Commission to undertake
investigation, upon complaint or its own initiation, in respect of human rights violations.
Despite the protection of the right to peaceful demonstration and accountability mechanisms for violations, Ethiopian students,
members of opposition groups, journalists and others seeking to express their rights to freedom of assembly, expression or
association are frequently killed, mistreated or detained arbitrarily. Credible human rights activists and independent human rights
reports underscore that Ethiopian security forces used excessive force to disperse peaceful and unarmed demonstrators. This
potentially constitutes a blatant violation of human rights laws and norms, which the country is obliged to respect and protect.
A culture of tolerance of different opinions is necessary to prevent such violations of human rights. Security forces should use
only non-lethal equipment, rather than firearms, during peaceful protests. The Ethiopian government should assume responsibility
for the unlawful conduct of security officers. To strengthen accountability mechanisms, the country should review its legislation
in the light of international standards on the use of force by enforcement officers, in particular, the Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials, 1990. It is important that prosecutions be initiated each time security forces kill
peaceful demonstrators. Courts, in turn, must play their role in penalising those responsible and awarding damages to victims or
their families.
Solomon Tekle Abegaz, LLB (Addis Ababa), LLM (Addis Ababa), is currently an LLD candidate in the Public Law Department at the
University of Pretoria. His research interests are human rights and international law.

Right to Protest: Developments at the Inter-American and UN Systems


By Juana Kweitel | 7th May 2014

On Friday, 28 March 2014, there was a thematic hearing about the repression of social protests in Brazil at the Organization of
American States (OAS)s Inter-American Commission on Human Rights (IACHR), and the UN Human Rights Council (HRC)
adopted a resolution on the same issue. The IACHR is a non-political body, whereas the HRC is a political one. However, both
processes left the impression that human rights mechanisms need to be reinvented.

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During the hearing, two hundred cases of police abuse, perpetrated since June 2013 in Brazil, were presented to the IACHR in
Washington D.C., including cases of aggression, illegal detention, beatings, mutilations and other rights violations at public protests.
Brazilian NGOs decided to approach the IACHR because the Brazilian government refused to engage with them on the issue.
These organizations also decided to hold a thematic hearing rather than present an individual case to the IACHR because cases
take much longer than is acceptable (e.g. the Brazilian NGO, Conectas, submitted a case in 2009, but it still has not received a
response).
Representatives of the Brazilian government focused their statements on three points of little relevance to the topic, namely:
the existence of a torture prevention mechanism, new rules for police handling of fatalities and the provisions of the Brazilian
Constitution that recognize, in theory, the right to protest. Despite the severity of the violations NGOs presented, the IACHR did not
push the Brazilian government to give concrete answers directly related to the issues at hand nor to answer all questions asked.
A few minutes after the hearing, the HRC in Geneva voted on the adoption of a resolution on social protests put forth by
Switzerland, Costa Rica and Turkey. The resulting text fell short of NGOs expectations in terms of human rights protections. The
resolution made no progress on a number of requests from civil society, such as a ban on state agents use of lethal weapons
during demonstrations. Moreover, the text does not explicitly recognize that an act of violence during a protest does not exempt the
state from guaranteeing full respect of the demonstrators rights. A group of countries led by South Africa and joined by India, China
and Russia presented a series of amendments to the resolution that would have further weakened it. These amendments would
have permitted, for example, that protests be considered a threat to national security. Thankfully, however, the amendments were
not included in the final resolution.
At the moment, the repression of social protests in several countries is resulting in serious human rights violations. A progressive
norm coming from the highest international human rights body, the UN Human Rights Council, is desperately needed. But yet
again, the results have generated great frustration among civil society.
At the end of the day, several questions remain unanswered: How should we go about making these mechanisms more
effective? How do we bring them closer to the people who are going to be affected by their operation? How can we use these
mechanisms and, at the same time, be able to criticize them without being perceived as against human rights? What are the main
improvements that are needed?
A debate on these issues is desperately needed and should not be postponed. The prevailing feeling is that innovation will come
from greater citizen participation, both virtually and physically, to make human rights an issue of major concern for all people, not
just for human rights defenders.
Juana Kweitel is Program Director of Conectas Human Rights. She has an LLM in International Human Rights Law from the
University of Essex and in Political Science from the University of So Paulo. She is a lawyer with a law degree from the University
of Buenos Aires (Argentina).

Egyptian Human Rights Groups Face Difficult Choices After Al-Sisis Ultimatum
By Heather McRobie | 21st January 2015

A Mubarak-era law stating that human rights groups must register with the government has been utilised by President al-Sisis
administration to encourage compliance with the administration by human rights organisations based in Egypt. Issued with an
ultimatum by the government in November 2014 to either re-register or face a crackdown, Egyptian human rights organisations are
facing difficult questions about their future under the al-Sisi government.
A Mubarak-era law from 2002 requiring non-governmental organisations to register with the government was invoked by al-Sisi
during a public statement in November, which asserted that human rights groups and other civil society groups must re-register
with the government or face a potential crackdown on their activities. For their part, Egyptian human rights groups, such as the
prominent Egyptian Initiative for Personal Rights, have claimed that the law is restrictive and an attempt by the government to
prevent them from being able to undertake their research and advocacy work to their best ability.
On December 21st, 2014, the Egyptian Initiative for Personal Rights, a widely-respected advocacy and research human rights
organisation founded in 2002, issued a statement outlining that its board of trustees had voted to register, after the government
ultimatum warning that organisations that failed to do so would face prosecution. The statement explained that the organisation has
chosen to attempt to continue working under the restrictive law and, according to the Associated Press, test what freedom the law
allows.
While the ultimatum deadline passed without arrests, after Egyptian officials claimed that nine foreign human rights organisations
and eight Egyptian human rights organisations had opted to submit their applications to register, not all Egyptian human

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rights groups feel able to continue working in Egypt after the ultimatum. The Cairo Institute for Human Rights Studies, another
prominent human rights organisation that was crucial in documenting human rights abuses under Mubarak, has opted to move its
headquarters to Tunisia, rather than face the potential further scrutiny and hindrance to its work registering might entail.
There are concerns from human rights groups that new restrictions will, in reality, constrain their ability to function effectively, such
as the 2014 revision to Article 78 of the penal code that imposes a life sentence on anyone who receives foreign funding with the
aim of hurting national security, a nebulous statement reminiscent of the charges against the three Al Jazeera journalists currently
in jail in Egypt for the charge of threatening national security through their work as journalists.
The recent ultimatum issued by the Egyptian government towards human rights organisations and other civil society organisations
is part of the wider landscape of laws and decrees by the al-Sisi government aimed at restricting and closely monitoring the
conduct of human rights organisations. In the summer of 2014, Human Rights Watch released a report, All According to Plan, which
documented state and army involvement in the Rabaa al-Adawiya Square massacre in which, it estimated, between 800 and 1,100
people were killed on July 14th and July 15th 2013. Members of Human Rights Watch arriving in Egypt in order to present their
findings shortly before the publication of the All According to Plan report were detained upon arrival for twelve hours and denied
entry into Egypt.
Sarah Leah Whitson, the Middle East and North Africa director of Human Right Watch, has claimed that under al-Sisis government,
it is now business as usual, with Mubarak-era restrictions on human rights organisations revived. The al-Sisi government has
been clamping down on both Islamist groups and secular organizations, such as the April 6th Youth Movement, who were crucial
in organising the 2011 revolution that overthrew authoritarian President Hosni Mubarak. The 2014 anti-protest law, that curtailed
freedom of assembly, was widely criticised by Egyptian human rights groups for impinging on Egyptians human rights. Yet, as the
new restrictive measures against human rights organisations indicate, while human rights may be being corroded under al-Sisi,
human rights organisations themselves are also caught in the crossfire.
Heather McRobie is an Editor of the OxHRH Blog. She is a final year DPhil student in Socio-Legal Studies and a member of
Wolfson College, University of Oxford.

Repression of Nonviolent Activism in Syria


By Malu Halasa | 9th June 2014

These days, nonviolent activists in Syria find themselves targeted on one side by the Syrian regime, and on the other, by extremist
Islamic fronts. Their opposition to narrow interpretations of their countrys future as either a continuing dictatorship or an equally
brutal Sharia-state has given these supposed foes common cause in attacking them.

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On 9 December 2013, masked gunmen entered the office of the Violations Documentation Centre in the Damascus suburb of
Douma. They kidnapped renowned Syrian human rights lawyer Razan Zaitouneh, one of the most credible voices of the Syrian
revolution. Sought by the regime for her activities, she was forced into hiding. But that did not stop her from working.
In a 2012 essay, she describes the process of verifying Syrias dead in Culture in Defiance, p. 22: Experts of death
documentationdo not cry. We dont stop wondering whether we, who are documenting death through the screens of our
devices, or thosedocumenting death with their fingers and eyes will someday return to be natural creatures? Or has death
already added us to its kingdom at the end? Following her kidnapping, Syrias death toll rose from 150,000 to 162,000 in less than
two months.
Razans husband Wael Hamida, former political detainee Samira al-Khalil and poet Nazem al-Hamadi were abducted along with
Zaitouneh. Initially, it was thought that the gunmen were allied to the regime. However al-Khalils husband, the Syrian dissident
author Yassin al-Haj Saleh identified them as belonging to Jaysh al-Islam (Amy of Islam), a Saudi-backed group. Neither Zaitouneh
nor her colleagues have been heard from since. Kidnappings by the Islamic fronts of foreign journalists and Syrian media workers
are not new. Among many others, the photographer Ziad Homsi was held by ISIS in al-Raqqa for over a month before his release.
In Zaitounehs last video blog before her disappearance, she describes the more than two-year imprisonment and torture in
detention of Mazen Darwish, the director of the Syria Centre for Media and Free Expression. In a letter smuggled out of Damascus
Central Prison, and using the word discipline as a euphemism, Darwish writes with compassion: To the security personnel who
carried out the responsibility for disciplining me for ten months, and especially for those who disciplined me in the first days of Eid
al-Adha, I feel sorry for all of us.
Both Darwish and Zaitouneh have been influential in the LCC, an activist-run network of Local Coordinating Committees operating
in Syrian towns and cities, which organised Syrian citizen journalists. Since the beginning of the uprising, more than 300,000 films
and documentary reports from Syria have been posted over the Internet. But many contributors were dispirited after the 2012
chemical attacks in East Ghouta and Douma failed to budge the international community into action. Their numbers decreased.
The journalists, photographers and filmmakers who remain active inside and outside the country continue the work of Zaitouneh
and Darwish. As they amass and verify evidence for a war crimes tribunal on Syria, it seems they are guaranteeing themselves
future persecution by both Baathists and Islamists.
Malu Halasa is an editor and writer in London. She is coauthor of Syria Speaks: Art and Culture from the Frontline and editor of
Culture in Defiance: Continuing Traditions of Satire, Art and the Struggle for Freedom in Syria.

Constitutional Court of South Africa: Blunting the Impact of Electoral Law on Freedom of
Expression
By Andrew Wheelhouse | 24th February 2015

The Constitutional Court of South Africa has undertaken a robust defence of freedom of expression at the time of an election,
following litigation between the governing party and the official opposition in Democratic Alliance v African National Congress and
Another [2015] ZACC 1.

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The case arose out of the scandal surrounding the use of public funds to build improvements around the homestead of President
Jacob Zuma in Nkandla, KwaZulu-Natal. A report by the Public Protector (a constitutionally mandated public administration
ombudsman) published in March 2014 was highly critical of the expenditure. The next day, with the general election only a few
months away, the Democratic Alliance (DA) sent a text message to over 1.5 million voters in Gauteng province, which said:
The Nkandla report shows how Zuma stole your money to build his R246m [around 15m] home. Vote DA on 7 May to beat
corruption. Together for change.
It was alleged by the African National Congress (ANC) that the DA had published false information with the intention of influencing
an election contrary to s.89(2) of the Electoral Act or had published false or defamatory allegations contrary to Item 9(1) of the
Electoral Code. The DA argued that the message was fair comment based on a genuinely and honestly held view of the Nkandla
Report. The High Court found in favour of the DA, but the Electoral Court ruled for the ANC on the basis that the message was
indeed false.
The Constitutional Court found for the DA by a majority of 7-3. The main confrontation concerned whether the allegations
constituted fact or comment. Zondo J, writing for the minority, advocated an analysis founded in defamation law. The ordinary
reasonable man would understand the text as an allegation of fact that President Zuma has stolen taxpayers money. This was
false, as it was not what the Nkandla Report found.
This approach was unpalatable to the majority, though, for varying reasons. The main judgment rejected the importation of
defamation law concepts in favour of a straightforward exercise in statutory interpretation. S.89(2) imposes criminal liability and so
should be construed narrowly, especially given the limitations it imposes on freedom of expression (s.16 of the constitution), which
are vital to the exercise of political rights (section 19). Accordingly, the provisions only prohibit the assertion of false statements of
fact designed to subvert the electoral process (for example, that a particular candidate has died, etc.). They are not designed to
criminalise comment, and the text message was clearly comment based on an interpretation of the Nkandla Report.
The joint concurring opinion argued that the fact/comment dichotomy is illusory, and rather, a spectrum exists. The closer the
resemblance of a statement to fact rather than opinion, the more intense the courts scrutiny will be. The statutory prohibition is
restricted to false information of a factual nature. The text message had attributes of both fact and comment, but the appeal should
be allowed because the Presidents conduct could fit into one of the meanings of the word stole.
Eschewing an analysis based on defamation law was sensible. Electoral law is designed to guarantee that elections are free
and fair, not defend the reputations of candidates. The majority correctly found that whatever the intricacies of the fact/comment
dichotomy/spectrum debate, the issues had to be resolved in favour of the defendant. All that was sought in this case was a
retraction and an apology, but in other cases the result of an election may well hang in the balance. A court should hesitate to
overturn or pre-empt the verdict of the electorate for what amounts to sharp practice, rather than an interference with the electoral
process.
It is worth reflecting on this as we near the UK General Election in May. Following the 2010 election, the Divisional Court upheld
the voiding of the result in Oldham East and Saddleworth in R(Woolas) v Parliamentary Election Court [2012] QB 1 under the
equivalent English legislation, s.106 of the Representation of the People Act 1983. Phil Woolas campaign was puerile stuff and
his absence from the current parliament was no great loss, but we should be wary of permitting judges to rule on the substantive
content of election campaigns.
Andrew Wheelhouse was called to the Bar Of England & Wales at Middle Temple in 2013. Between January and July 2014 he
served as a Foreign Law Clerk to Justices Skweyiya and Madlanga at the Constitutional Court of South Africa. He writes here solely
in a personal capacity.

Racial Discrimination Act and Free Speech Carte Blanche or Fair and Reasonable
Where are Human Rights in all This?
By Liz Curran | 27th February 2015

Professor George Williams has noted the fact that freedom of speech receives no general protection in Australian law is not of itself
an argument for introducing such protection. Unlike in the United Kingdom, Canada, the United States and New Zealand, there is
no such right at a national level in Australia. There is a limited right to freedom of political communication in the context of voting,
which is circumscribed, but acknowledged by the High Court of Australia.
Anyone listening to recent debate and statements by political leaders and right wing commentators in Australia would think that,
as in the United States, there is a right to free speech engrained in Australian laws. The Attorney General, George Brandis, has
made recent moves to amend the Racial Discrimination Act (the RDA) because there is a claim that the current sections 18C and

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D of the RDA, which prohibit offensive behaviour (including speech) based on racial hatred, limit free speech. After public outcry
and an overwhelming number of submissions raising concerns about the suggested changes in 2014, the proposed amendments
were taken off the table. However, the recent terror attacks in Paris have been used as a vehicle to call for its resurrection by the
conservative right.
I have long been an advocate for human rights. This includes free speech, but I, like Professor Williams, believe all human rights
need protection, not one right in isolation and to the exclusion of other rights. Williams notes It would be preferable to protect the
right (of free speech) as part of a more comprehensive scheme of rights protection. In Victoria and the Australian Capital Territory,
both with State and Territory human rights legislation, I have seen this framework open up participatory and more democratic
dialogues between decision- makers and community members like never before with a consequent balancing and consideration of
peoples human rights. This has been especially the case for people I have assisted who have a disability or are in need of critical
health services.
It is important to understand the context behind the current moves to reduce the protections against racially motivated hate speech
protected by the RDA. Firstly, it is important to note that these provisions in the RDA are a critical measure in Australia in view of
the ongoing disadvantage of and discrimination against Indigenous Australians. A recent report demonstrates how this part of the
Australian community remains staggeringly disadvantaged in comparison to the non-indigenous population.
The Prime Minister in 2013 undertook to amend the RDA to repeal section 18C, after a controversial media commentator, Andrew
Bolt, lost a case in the Federal Court of Australia for a publication in which he referred to fair skinned Aboriginal people. Justice
Bromberg found Bolts articles would have offended a reasonable member of the Aboriginal community, that he had not written
them in good faith and that there were factual errors. Mr Bolt railed against the courts finding. Attorney General Brandis, famous
for his claim there is a right to be a bigot announced proposals to amend the current section 18C, which makes it an offence to
offend, insult, humiliate or intimidate a person.
Under the Brandis proposals, almost any racist speech will be allowed. This is because the exposure Bill includes a wide exemption
for comments made in the course of participating in the public discussion of any political, social, cultural, religious, artistic,
academic or scientific matter. Professor Simon Rice highlights that [t]he proposed exception is not limited. It allows race-based
conduct in public discussion (by, for example, columnists, bloggers and public officials) that is unreasonable, in bad faith, dishonest,
inaccurate or irrational, even if it could intimidate or incite hatred. In public discussion, absolutely nothing is prohibited by the
proposed law.
Public outrage at proposed amendments led to a departmental inquiry, which took submissions in 2014. As a result of the
overwhelming submissions, the amendment was taken off the table. However, in reaction to the Je suis Charlie campaign, we
have again seen the exponents of the amendments use the right to free speech in Australia to clamour for the repeal of section
18C. As noted in an open letter I wrote as Co-Convener of the Human Rights Working Group to the Prime Minster and the
submission to the departmental Inquiry in 2014, The insensitivity to the impact of unwarranted racist attacks is troubling. People will
hide away, people will cower, people will be afraid. Is this not also a threat to the free speech?
Dr Liz Curran, Senior Lecturer, Australian National University College of Law.

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Chapter 8

Religion

Religion
Chapter 8

146

Introduction Julie Maher

147

Meriam Ibrahim is Freed: Weaving Together Law, Politics and Civil Society

147

International Law and the Denial of Minority Status to Indian Muslims

149

Translating Questions Of Religion Conversions to Issues of Human Rights: The Proposed Ban on
Religious Conversions in a Secular Indian State

150

Using Faith to Reinforce Human Rights of Bahs in Iran

151

Conform or be Confined: S.A.S. v France

152

Professor Frances Raday Comments on SAS v France

154

SAS v France in Context: the Margin of Appreciation Doctrine and Protection of Minorities

155

Clash of Rights at Centre of Canadian Law School Controversy

156

Law Society of Canadian Province Nova Scotia is Found to Have Overstepped its Mandate,
Violating Religious Freedoms

157

Navigating the Troubled Waters of Religious Accommodation

158

Religious Anti-Gay Refusal Valuing Dissent Without Making it Lawful

159

Conscientious Objection to Military Service in International Human Rights Law

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Freedom of Religion and Belief in Turkey

Religion
Chapter 8

Introduction
By Julie Maher

How a state treats its religious minorities is often a strong indicator of the general level of tolerance and respect for individual
freedoms within that state. From the collection of posts on freedom of religion in this chapter we can see that the diversity in the
debates surrounding protection of freedom of religion to a large extent maps onto the distinct responses which a state may take
towards the religious diversity in its population. This chapter is divided into three distinct sections: the first considering the protection
of freedom of religion as an aspect of international human rights law; the second focusing on protection of freedom of religion under
the European Convention on Human Rights; and the last section looking towards North America and some of the recent additions
to domestic Canadian jurisprudence on freedom of religion.
In recent years the debate in Britain has focused on issues such as the extent to which there should be accommodation of religious
belief within the workplace and the challenges inherent to religiously motivated expression that conflicts with non-discrimination
norms. In the context of recent domestic debates, some commentators have decried the persecution of Christians in Britain. The
contributions of Jon Yorke (Meriam Ibrahim is Freed: Weaving together Law, Politics and Civil Society p 147), Stephanie Berry
(International Law and the Denial of Minority Status to Indian Muslims p 147), and Shantanu Dey (Translating Questions Of
Religion Conversions to Issues of Human Rights: The Proposed Ban on Religious Conversions in a Secular Indian State p 149)
in the first part of this chapter serve as a timely reminder of the wider context of freedom of religion and the extreme challenges
faced by religious minorities across the globe. Indeed, in countries where international human rights standards have little impact,
alternative approaches may be required. Nazilla Ghaneas post explores how appeals for tolerance based on religion, cultural
traditions, and domestic history, can be more effective by looking at the effect of an Islamic clerics gesture towards the persecuted
Bah community in Iran (Using faith to reinforce human rights of Bahs in Iran p 150).
The trends and case law from the ECHR contracting states, discussed in the second section of this chapter, illustrate how the mere
fact that a country defines itself as secular rather than as aligned with a particular religious tradition is no certain indication of a
greater extent of religious freedom. This chapter includes contributions focusing on the limitation of religious practice within two oftcited examples of secular states within the Convention system, Turkey and France. The second section of the chapter focuses on
one of the most anticipated ECtHR judgments in recent years. Following the enactment in France in 2010 of legislation restricting
the wearing of the burqa (or voile intgral, as it is typified in French debates) commentators and academics alike questioned how
Strasbourg might react, with many predicting an end to the ECtHRs past latitude towards French secularism. Such assumptions
ultimately proved incorrect, with the SAS judgement serving to further complicate the Courts case law on the appropriate limits of
State action under Article 9. Three contributions in this chapter, Lucy Vickers (Conform or be confined: S.A.S. v France p 151),
Frances Radays (Comments on SAS v France p 152), and my own (SAS v France in Context: the margin of appreciation doctrine
and protection of minorities p 154), probe the reasoning and ramifications of the Grand Chambers judgment.
The chapter closes with a consideration of two cases from Canada which illustrate the difficulties in determining the appropriate
limitations of religious freedom according to domestic human rights standards. Ravi Amarnath (Clash of Rights at Centre of
Canadian Law School Controversy p 155) and Stephanie Tsang (Navigating the Troubled Waters of Religious Accommodation p
157) both consider how religious freedom can be balanced against protection from gender discrimination and sexual orientation
discrimination. The challenge of aligning societys dual commitment to non-discrimination and protection of religious freedom will
undoubtedly continue to prove controversial within our own domestic debate. Accordingly, it is certainly worthwhile to consider how
Canadian courts have responded to such clashes of rights within their jurisprudence.
Dr Julie Maher is a barrister in Ireland.

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Meriam Ibrahim is Freed: Weaving together Law, Politics and Civil Society
By Jon Yorke | 5th August 2014

On 22 June 2014, the Court of Appeal, Khartoum North and Sharg-el-nil Criminal Circuit, quashed the 11 May Al-Haj Yousif
Criminal Court sentence of 100 lashes and the death penalty for Meriam Ibrahim for the crimes of sexual immorality and apostasy
from Islam.
Following her release from prison on 23 June, Meriam, her husband, Daniel Wadi, and their two children sought refuge in the US
Embassy in Khartoum. On 24 June, she obtained an official visa, and the family attempted to fly to the United States but were
detained by the National Intelligence Security Services at Khartoum airport. Meriam was charged with falsifying a South Sudan
emergency travel document. If convicted she faced a prison sentence of up to seven years.
The global media campaign intensified against this apparent grave injustice. On twitter and facebook, #savemeriam and
#freemeriam were trending. There were many Free Meriam campaigns initiated, including by Amnesty International and Emily
Clarkes Change.org petition, which both gained over 1 million signatures.
This significant civil society pressure helped strengthen political diplomacy. Many individual governments spoke out against
the initial sentence and her re-arrest. For example, Mark Simmonds, Parliamentary Under Secretary of State for Foreign and
Commonwealth Affairs, called for Sudan to respect Meriams human rights. Then the FCO and the British Embassy in Khartoum
closely monitored the situation and provided advice to Meriams lawyers.
In the United Nations, Rupert Colville, the spokesperson for the UN High Commissioner for Human Rights, voiced the UNs,
deep concern about the situation of Meriam Ibrahim. In the EU, following the EU Presidencys of the Parliament, Council and
Commission, expressed their deepest dismay, at Meriams inhumane treatment, the EUs European External Action Service raised
Meriams plight in the UN Human Rights Council. The European Parliament then adopted a resolution on the case on 17 July.
During the bilateral and multilateral initiatives, Lapo Pistelli, the Italian Deputy Foreign Minister visited the region, and it is now clear
that the Italian government performed a very significant role in the subsequent quashing of the charges, the family obtaining new
visas and flying out of Khartoum late on Wednesday 23 July. Their plane landed at Romes Ciampino airport on Thursday 24 July,
and the Ibrahim-Wadi family had a meeting with Pope Francis at his Santa Marta residence.
Lapo Pistelli told Vatican Radios Susy Hodges, that the dialogue with the political authorities in Khartoum had been very fair and
that President al-Bashir had stated Sudan had to rethink the Constitution and the Penal Code, and it is highly likely that the issue of
apostasy will be modified and deleted.
Susy Hodges asked, Presumablywe have to thank the international outcry that broke out after the death sentence? Pistelli
answered, Yesthe international attention given by the media has helped all the efforts of the international community or the
American government or the Italian government, to be successful.
On 1 August, Meriam and her family arrived in New Hampshire to begin a new life, and whilst welcoming her on a brief stopover in
Philadelphia, Mayor Michael Nutter described her as a world freedom fighter.
This human rights success story cannot be attributed to one forum of power or one single discourse. It is the weaving together of
legal activism, political diplomacy and a unified civil society voice.
The global support for Meriams lawyers, the personal safety of the family provided by the US Embassy, the regional, and
governmental diplomacy, with the important role of Italy, all came together to ensure that further gross human rights violations did
not befall the Ibrahim-Wadi family in Sudan.
Dr Jon Yorke is a Reader in Law and Director of the BCU Centre for American Legal Studies, at the School of Law, Birmingham
City University.

International Law and the Denial of Minority Status to Indian Muslims


By Stephanie Berry | 3rd July 2014

On 27th May, the Indian Minister of Minority Affairs, Najma Heptullah, declared that Muslims are not minorities, Parsis are, the
suggestion being that Muslims are too large in number to constitute a minority. Yet out of a population of 1.2 billion people, Indian
Muslims, at approximately 138 million, clearly constitute a numerical minority. While India is a secular state, 80 percent of the
population is Hindu. Furthermore, the newly-elected ruling party, the Bharatiya Janata Party (BJP), is pro-Hindu and was involved
in the campaign to demolish the Babri mosque in the 1980s-90s. Consequently, the suggestion that Indian Muslims are not able to

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benefit from the protections available to minority communities has the potential to impact their ability to preserve their identity.
Although the Indian Constitution provides for freedom of religion, the suggestion that Muslims are not a minority excludes this group
from the additional protections it affords to minorities. Notably, Section 30 of the Indian Constitution recognises that [a]ll minorities,
whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
Furthermore, Section 29, entitled, Protection of the Interests of Minorities, focuses on the conservation of minority languages,
scripts and cultures. As Islam is recognised to be a way of life, akin to a culture with a distinct language, Section 29 is also relevant
to the preservation of the Indian Muslim minority identity.

Article 27 of the International Covenant on Civil and Political Rights (ICCPR) (acceded to by India in 1979) establishes that persons
belonging to religious, linguistic and ethnic minorities have the right to preserve their minority identity. The 2006 Sachar Committee
Report, commissioned by the Indian government, noted that [m]arkers of Muslim Identity . . . have very often been a target for
ridiculing the community as well as of looking upon them with suspicion. Furthermore, the demolition of the Babri mosque in the
1990s and subsequent intercommunal violence highlight the significant barriers that Indian Muslims face to the preservation of their
identity.
Socio-economic disadvantage related to minority identity also has the potential to negatively impact the preservation of that
identity. Thus, Article 2.2 of the UN Declaration on Minorities recognises that measures must also be taken to overcome socioeconomic disadvantage. The Sachar Report revealed that Indian Muslims are predominantly poor and suffer from disadvantage in
education, health and employment. The poor economic situation of Indias Muslims, coupled with social stigma, has the potential
to significantly impact the ability of this community to preserve its minority identity. The suggestion that Indian Muslims are not a
minority overlooks not only the fact that they constitute a numerical minority but also their disadvantaged position within society.
The significance of the exclusion of Muslims from the protections afforded to minorities is most acute with respect to Muslim Dalits,
who suffer from intersectional discrimination. Muslim Dalits are discriminated against on the basis of both their religious identity
and their ethnic identity, as members of the Scheduled Castes (the most socially disadvantaged Castes in India). The UN Special
Rapporteur on Religion and Belief and the Committee on the Elimination of Racial Discrimination have noted with concern that,
upon conversion to Islam, Muslims Dalits are excluded from affirmative action programmes targeting the Scheduled Castes.
Additionally, although Dalits convert to Islam in order to escape caste-based discrimination associated with Hinduism, the previous
caste status and related social bias . . . often remain at the social level. Thus, the discrimination suffered by this community is
magnified.

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The exclusion of Indian Muslims from minority group status and the accompanying rights protections has the potential to
exacerbate the difficulties faced by this community and, thus, conflict with Indias obligations under both the ICCPR and the
International Convention for the Elimination of All Forms of Racial Discrimination. While the suggestion that Indian Muslims are not
a minority is motivated by the size of the community, the fact that they are large in number does not impact their ability to preserve
their identity and should not deprive them of minority status. The election of a pro-Hindu party in a country that has witnessed
religiously-motivated violence underscores the need for measures to protect the identity of Indian Muslims.
Dr. Stephanie E. Berry is Lecturer in Public Law at the University of Sussex. Her research interests include the rights of new and
religious minorities under international law.

Translating Questions Of Religion Conversions to Issues of Human Rights: The Proposed


Ban on Religious Conversions in a Secular Indian State
By Shantanu Dey | 30th January 2015

In recent months, the political focus in India has shifted towards the sensitive issue of forced religious conversions, known as,
Ghar Wapsi (Homecoming Ceremony). The conversions of 200 Muslims in Agra and Christians in Gujarat to Hinduism, thought
to have been forcefully carried out by radical Hindu groups, have sparked controversy and generated disruption in the Indian
Parliament.
To combat such conversions, the Central Government in India has proposed a contentious national anti-conversion law to ban and
criminalise religious conversions initiated by force, inducement or fraud, prescribing a monetary penalty, along with imprisonment
of up to two years. Despite its secular appearances, serious questions remain as to whether, paradoxically, the proposal serves to
bolster the countrys powerful Bharatiya Janata Party and its Hindu ideology at the cost of freedom of religion.
The ambiguous words force, inducement or fraud, currently used in anti-conversion legislation of five other Indian States, have
meant the statutory definition of forced religious conversions includes inducements in the form of promises, economic benefits and
free education/health services. The proposed legislation seeks to draw from the state-level laws, curiously referred to as Freedom
of Religion Laws, which require religious converts to provide a month-notice to the district administration of conversions.
It is important to set the proposed law against the social and economic backdrop of religious conversions in India. The root cause
of conversion has always been the pursuit of opportunities to protect human dignity and to battle against societal discrimination
by the socio-economically defenceless classes of a particular religious group. The proposed law amounts to the criminalization of
religion as means of capability-building, encroaching on individual choice and misunderstanding the virtue of religious diversity,
which underlies the constitutional text. The enjoyment of religious freedom by minority groups remains an ongoing issue in India, as
discussed in the US State Departments 2013 Report.
The political discourse, which blurs the line between voluntary and forced conversions, has demonstrated insensitivity to the
international principles enshrined within the International Covenant on Civil and Political Rights (ICCPR) and the Universal
Declaration of Human Rights (UDHR), to which India is a signatory. Article 18 of the UDHR explicitly grants an individual the
freedom to change his religion or belief, and freedom, either alone or in community with others, and in public or private.
Such a right to conversion can also be found within the ICCPR framework under Article 18(1), articulating the freedom to adopt
a religion of ones choice, as supplemented by the 1981 Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, which also endorses such expansive understanding of freedom of religion. That said, it
must be recognized that Article 18(2) of the ICCPR explicitly prohibits coerced conversions.
If enacted, the Indian Parliaments anti-conversion proposal is fated to reach the Supreme Court. Article 25 of the Constitution of
India guarantees the fundamental right to freely profess, practice and propagate religion. The freedom to convert has often been
argued to be a subset of freedom of conscience guaranteed under Article 25, suggesting that the resultant widening of powers
granted to the government to dictate citizens choice in the realm of faith and religion is tantamount to violation of such freedom.
However, the limited ambit of the right has been stated by the Supreme Court of India in Rev Stanislaus v State of Madhya
Pradesh, where it held that the right to propagate does not include right to convert, meaning state-level anti-conversion statutes
were upheld. In order to democratically manage religious differences in a secular society like India, the Lemon Test, laid down by
the US Supreme Court in Lemon v Kurtzman, which held that a statute must guard against excessive state-religion entanglement,
ought to be the approach for reviewing the proposed anti-conversion law.
Rev Stanislaus came at a time when judicial activism was still in its emerging phase. Whether the Supreme Court will engage
further with the national and international rights mentioned here against the social and economic context of religious conversions in

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contemporary India may yet be seen.


Shantanu Dey is a law student at NALSAR University of Law, Hyderabad.

Using Faith to Reinforce Human Rights of Bahs in Iran


By Nazila Ghanea | 20th May 2014

An Islamic clerics gesture to the persecuted Bah community in Iran shows that in countries where universal human rights
standards have little local resonance, appeals for tolerance based on religion, cultural traditions and domestic history can help
break the deadlock.

Veteran human rights activist Larry Cox suggested that religion offers the human rights movement hope for renewal, greater
legitimacy and impact. This begs some important questions, however: which religion, whose religion, which human rights and in
what part of the world?
Greater engagement of religions with human rights requires domestication and rootedness, rather than a shallow application of
universal standards. Appeals for tolerance and equality are communicated best when based on a peoples accepted cultural and
intellectual traditions. This is most urgent in cases of longstanding persecution of particular religious communities by government or
social groups.
The persecution of the Bahs in Iran is one such case. With over 300,000 followers, the Bahs are Irans largest non-Muslim
religious minority. However, they have no legal protection or recognition as a minority because unlike Jews, Zoroastrians and
Christians, the Iranian constitution does not recognize their faith. For decades, they have been arbitrarily detained, executed,
refused education and livelihood. Hundreds were killed after the 1979 revolution. More than 130 Bahs are currently in prison
on false charges. Seven former religious leaders are serving 20-year jail terms. A 35-year-long history of intolerance has become
systematized and institutionalized into a far-reaching pattern of serious, government-instigated and government-perpetuated
violations.
At first glance, the case of Irans Bahs seems to support the notion that religion should be kept, at best, to the fringes of rights
discussions. Greater pragmatism, however, suggests otherwise. Since political and religious leaders in Iran have attempted to base
170 years of anti-Bah sentiment on religious foundations, then the appeal to universal standards of human rights alone will not
sufficiently realize respectful coexistence. While universal standards have merit, they may have insufficient resonance. In Iran, and
elsewhere, the best access may prove to be the human rights appeal through dominant sacred texts and values.

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Recent statements by Shia clerics favoring coexistence with the Bahs offer room for hope. Ayatollah Masoumi-Tehrani is
no stranger to calling for religious co-existence in Iran. Recently, however, he included a call to respect Irans Bahs. In a
statement released on 7 April 2014, Masoumi-Tehrani recalled that Irans history includes periods in which different religions and
denominations, with manifold beliefs and practices, enjoyed social interaction and tolerant coexistence. He bemoaned the loss of
that tradition, noting the devastating undermining of the right to be human, the right to life, and human dignity. He described Irans
current social reality as one of religious apartheid.
As a gift to the Bahs, Masoumi-Tehrani prepared calligraphic works of art, choosing a symbol of the Bah Faith known as
the Greatest Name a representation of the conceptual relationship between God, His prophets and the world of creation and
a verse from the Bah Holy writings. The fact that he chose the symbol and texts of the recipient and persecuted religious
community, the Bahs, goes some way towards underscoring his generosity.
This gestures intent is best captured by the Ayatollahs own words: I present this precious symbol and expression of sympathy
and care from me and on behalf of all my open-minded fellow citizens who respect others for their humanity and not for their
religion or way of worship to all the Bahs of the world, particularly to the Bahs of Iran who have suffered in manifold ways
as a result of blind religious prejudice. Such religiously meaningful gestures serve to complement human rights efforts and offer a
hope for greater legitimacy and impact.
Admittedly, the wide-ranging rights violations in Iran for the Bahs, and for all call for much more than a few gestures by a
handful of maverick religious leaders. However, these appeals play a significant role in undermining Irans longstanding tendency
to legitimize religiously motivated attacks on human rights. They foster a new tradition of inclusion to battle the ruling tradition
of impunity. They may also prove a necessary precursor to the improvement of human rights in deeply religious, but also highly
polarized, countries such as Iran.
Nazila Ghanea is University Lecturer in International Human Rights Law at the University of Oxford, and an Associate-Director of
the Oxford Human Rights Hub. She is currently part of a two-year research project considering the domestic impact of UN human
rights treaty ratification on the member states of the Gulf-Cooperation Council.

Conform or be confined: S.A.S. v France


By Lucy Vickers | 8th July 2014

The European Court of Human Rights ruled on 1st July that Frances ban on face coverings, known as the burqa-ban, does not
breach the European Convention on Human Rights. The ban criminalises anyone wearing clothing designed to conceal the face in
public.
Although not limited to the burqa, the legislative history of the provision makes very clear that this is its main target. It follows
the well-known debate on the wearing of headscarves and other religious symbols in public employment and schools. Thus far,
this debate has concluded in favour of allowing restrictions to religious dress, for example for teachers (Dahlab v Switzerland)
and students (Sahin and Karaduman v Turkey), although the restrictions have been disallowed when they have been applied
disproportionately (Eweida et al v UK), or applied in public spaces more generally (Ahmet Arslan and Others).
What makes the French burqa-ban different is that it criminalises the manifestation of religion, which is highly symbolic, even if the
penalty is small. It also applies to veiling at all times in public. There is no potential for opting out: even if the veil wearer is welcome
in some venues, she cannot get there without entering the public space. She is effectively confined unless she conforms. These
factors might lead one to expect a decision that the ban was unduly restrictive of religious freedom.
Indeed, the judgment builds a strong case against the ban. First, it considers relevant international law and practice, and concludes
that a ban on the burqa in public would breach human rights standards and would be alien to European values. Second, the Court
reviews the situation in other European states and finds almost universal consensus against bans in public spaces. Third, the
court considered the legitimate aims that have been used previously to justify ban on religious symbols and shows how the ban is
unnecessary to achieve most of them. It finds that the aim of public safety does not require a ban on the burqa in all public spaces.
It is not necessary to uphold gender equality; nor is it necessary for human dignity. The Court also notes that small numbers of
women wear the veil and that criminalisation in itself is serious and may ingrain negative stereotypes. These arguments are made
so fully that it seems an almost inevitable conclusion that the ban will be found to breach Article 9 of the ECHR, protecting freedom
of religion.
However, the court identified one final legitimate the aim: respect for the minimum requirements of life in society referred to as

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living together. This must surely be one of the weakest of legitimate aims identified by the court. The dissenting judges label it
far-fetched and vague, and even the majority of the court concede that it is a flexible notion, which therefore needs careful
examination to ensure its necessity. Yet despite its own recognition of its weakness, the court accepted it as legitimate and decided
that, given the wide margin of appreciation applicable in religious freedom cases, the ban was proportionate. This conclusion is
disappointing, particularly the reliance on the nebulous concept of living together, an aim which could equally be met by promoting
a live and let live attitude, and which moreover could lead to bans on anything that makes the majority feel uncomfortable.
The final decision thus seems something of a let-down, coming as it does after such a careful and well evidenced demolition of the
standard arguments in favour of banning the veil.
Towards the end of the judgment, the Court acknowledges the need to exercise restraint in reviewing policies that have been
agreed through democratic processes; and recent political changes in Europe towards Euro-scepticism (addressed to the EU but
which may well have a spill-over effect on the Council of Europe) may go some way to explain its timid approach.
It remains a pity that, in the final analysis, the Court did not pay much regard to its own findings. Nonetheless, the decision has
some positive aspects. The Court clearly dismisses some of the traditional arguments for burqa-bans based on public safety and
gender equality. Moreover, the majority judgement and two thorough dissents provide a rich source of material for those wishing to
challenge wholesale bans in future.
Professor Lucy Vickers is Professor of Law at Oxford Brookes University.

Professor Frances Raday Comments on SAS v France


By Frances Raday | 19th July 2014

In the Grand Chamber judgment in the case of S.A.S. v. France, the European Court of Human Rights held, by a majority, that
Law no. 2010-1192 of 11 October 2010, which made it illegal for anyone to conceal their face in public places, did not violate the
European Convention of Human Rights.
The Court directed its inquiry to verifying whether the ban was necessary in a democratic society for protecting the rights and
freedoms of others. The French Government had listed three values in that connection: respect for gender equality, respect for
human dignity and respect for the minimum requirements of life in society (or of living together).
While dismissing the arguments relating to the first two of those values, the Court accepted that a veil concealing the face in public

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raised a barrier against others which could undermine the notion of living together and therefore could be regarded as necessary
for protecting the rights and freedoms of others in a democratic society. The dissenting opinion pointed out that the very general
concept of living together does not fall directly under any of the rights and freedoms guaranteed by the Convention and that,
moreover, the blanket ban could be interpreted as selective pluralism and restricted tolerance.
The dissenting opinion has been widely endorsed by civil society organisations. Indeed unease when encountering the other
can scarcely be considered a good stand-alone ground for restricting a minoritys cultural practices. It is a good ground only where
the unease arises from the violation of human rights by the minority practice, and, in the present case, the unease arises from
the practices depersonalisation of women. The community has a valid interest in negating the message to all women that they
are required to be self-effacing in order not to be immodest, and in preventing, as I have called it elsewhere, the shadow effect of
gendered modesty.
It is my aim to question the ease with which the aim of securing gender equality and womens dignity by banning the burqa was
unanimously dismissed by members of the Court and indeed, similarly rejected by constitutional instances in Spain and the
Netherlands and by civil society organisations, such as Amnesty International and the Open Society Initiative. All these have
emphasized the intersectional discrimination that a ban on full-face veiling creates for Moslem women who wish to wear the fullface veil and the violation of their constitutional freedom of choice. However, the discriminatory impact of giving license to the fullface veil on womens autonomy and freedom of choice has not been satisfactorily considered.
Islam like the other monotheistic religions although requiring both men and women to be modest, imposes on women the
burden of maintaining modesty codes. Modesty in the monotheisms is gendered and is designed to preserve patriarchal control
of womens sexuality, the family and the public space. Full-face covering is regarded as a modesty dictate by some followers of
Islam, although it is not expressly required in the Quran. It is at the extreme end of the spectrum of gendered modesty mechanisms
and is integrally related to a patriarchal regime, which submits women to mens power. The cost to the wearer is the negation of
the opportunity to move freely and interact fully with others in the public space; the health cost of being prevented from receiving
full medical care from male doctors; the impossibility of participating in any occupation that requires facial communication; and the
restriction of mobility by loss of field of vision. Moslem feminist activists have called this not a form of dress but a canvas prison.
The Court does not doubt that gender equality might rightly justify an interference with the exercise of certain rights and freedoms.
In this, the Court echoes the caveat of international human rights instances that freedom of religion and conscience cannot justify
discrimination against women. However, the Court takes the view that a State Party cannot invoke gender equality to ban a
practice that is defended by women unless it were understood that individuals could be protected on that basis from the exercise
of their own fundamental rights. Here the Court has failed to acknowledge that harmful traditional practices such as female genital
mutilation and discriminatory religious practices such as polygamy are regarded under international law as violations of womens
human rights, which should be prohibited, whether or not there are women who defend them.
Nor is the consent argument empirically persuasive. For every woman in a liberal democracy who chooses the burkah there are
other women who are compelled to wear the burkah in the context of family or community patriarchal control. The cases in which
girls flee from family homes in immigrant communities in Western liberal democracies in order to avoid being sent abroad for female
genital mutilation or forced marriage provides evidence of the ongoing force of religious patriarchy.
Furthermore, globally, many millions of the women who wear burkahs do not choose to wear them but are forced to wear them
in regimes where modesty police will impose corporal punishment for their failure to do so. The choice of a handful of women
in democratic countries to wear the burkah is perhaps an ethnic and religious identification symbol but it is also a symbol of
identification with womens oppression. The justified fear of human rights protagonists that criticism of Moslem religious practices
in Europe is an instrumentalist weapon of ethnic hatred should be addressed but cannot justify condoning practices harmful to
women.
Full-face covering depersonalizes women in social interaction and is harmful for their freedom of expression and freedom of
movement and, often, for their access to healthcare. In a democratic society it is necessary to protect the rights and freedoms of
women, including by providing effective regulatory frameworks to protect them against harmful practices. The legitimacy of the
French Law should have been considered in this context.
Professor Frances Raday is the Director of the Concord Center for Integration of International Law in Israel and Head of the
Schools Graduate Programs. She is also a Prof. Emeritus of the Elias Lieberman Chair in Labour Law at the Hebrew University in
Jerusalem. She has an honorary professorship at University College London and is doctor honoris at the University of Copenhagen.
Professor Raday writes in her academic capacity, and not in the framework of her work as a mandate holder of the HRC.

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SAS v France in Context: the Margin of Appreciation Doctrine and Protection of Minorities
By Julie Maher | 18th July 2014

In SAS v France the Grand Chamber of the European Court of Human Rights (ECtHR) found that a French law prohibiting the
concealment of the face in public places did not violate the European Convention on Human Rights (ECHR). The findings in the
case have been detailed elsewhere. This post asks how the judgment in SAS fits with the Courts other Article 9 case law and
highlights some of the issues raised by the judgment.

It might have been supposed that the ECtHR would view the October 2010 law as violating the Convention, given its previous
ruling in Arslan v Turkey, in which a violation of Article 9 arose from the conviction of 127 members of a religious group for wearing
religious dress in the streets. The Court emphasised the distinction between such restrictions operating in public areas open to all
and restrictions in schools or other public establishments, where religious neutrality was key, suggesting that a blanket ban in all
public spaces would likely violate Article 9. Moreover, as the ECtHR itself acknowledges in SAS, a large number of actors, both
international and national, in the field of fundamental rights protection have found a blanket ban to be disproportionate (para 147).
However, it nonetheless finds the ban proportionate and goes to some lengths to distinguish Arslan. It stresses that, though both
cases involve a ban on wearing religious dress in public places, SAS differs significantly [as] the full-face Islamic veil has the
particularity of entirely concealing the face (para 136). This appears a relatively thin basis on which to reconcile its findings with
the earlier case. It also appears at odds with the Chambers findings in Eweida and others that a far narrower rule, prohibiting the
wearing of religious symbols by British Airways employees, was in violation of Article 9.
The Grand Chamber highlights that the law did not expressly target religious dress (para 151). Such emphasis on ostensible
neutrality is unconvincing, given the legislative history of the ban and its impact on a highly specific class of persons; the Court
notes its concern at Islamophobic comments in debates on the law (paras 148-149). Nonetheless, the Court attributes significant
weight to the fact that the law was not expressly based on the religious connotation of the clothing in question but solely on the fact
that it conceals the face (para 151). This, in the Grand Chambers view, is sufficient to distinguish the 2010 law from the restrictions
in Arslan. However, it is obvious that the law is aimed at targeting religious persons and one religious group in particular.
There are certainly positives to take away from the judgment. In line with the Courts more recent case law, it is careful to
acknowledge the harm that restrictions on dress can cause to religious individuals, in contrast with much of its previous case law on
restrictions on the headscarf (paras 139, 146, and 152). The Grand Chamber makes an effort to recognise the divergent meanings
attributable to religious dress, abandoning the one-dimensional approach in some of its previous case law on Muslim dress (such
as Sahin v Turkey and Dahlab v Switzerland). As Lucy Vickers post highlights, the Court at times actually makes a strong case
against the ban, rejecting justifications of a blanket ban by reference to public safety, gender equality, or human dignity.
It is increasingly difficult to reconcile the varying elements of the Courts Article 9 case law because of the degree to which
deference to states choices of church-state models plays a role. In SAS the Court acknowledges the risk of abuse resulting from
the flexibility of the aim of living together. However, this statement of intent is contradicted by its subsequent acceptance that a
wide margin of appreciation should apply (para 155).

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Adopting a hands-off approach because the boundaries of religious freedom vary across Convention states or out of deference to
the democratic process contradicts the necessarily counter-majoritarian nature of human rights, particularly where protection of
minorities is concerned. As the dissenting judges (Nussberger and Jderblom) argue, it still remains the task of the Court to protect
small minorities against disproportionate interferences (para 20). The question remains how the judgments in Eweida and others,
Arslan, and SAS can be reconciled so as to identify the minimum content of Article 9s protection of religious manifestations.
Dr Julie Maher is a barrister in Ireland.

Clash of Rights at Centre of Canadian Law School Controversy


By Ravi Amarnath | 28th October 2014

The debate over whether to recognise a proposed law school in Canada has pitted fundamental freedoms against one another.
Trinity Western University (TWU) is a private, Christian university located in the Canadian province of British Columbia. TWU
requires its students, faculty and administrators to sign and abide by the terms of a Community Covenant, which includes a
provision to abstain from sexual intimacy that violates the sacredness of marriage between a man and a woman. Individuals who
breach the Community Covenant are subject to potential sanction.
In December 2013 TWU received government approval from the province of British Columbia to administer a three-year
undergraduate law program, starting in 2016. The Community Covenant has made the decision controversial, as same sex
marriage is legal in Canada.
A number of provincial law societies across Canada have decided not to accredit or in other words, recognize the proposed
law school. An individual cannot practice law in a particular province in Canada unless his or her law degree is accredited by that
provinces law society.
Notably, last April, law society leaders in Canadas largest province, Ontario, voted against the accreditation of TWUs proposed law
school. In June, the leaders of Nova Scotias law society resolved not to accredit the law school unless TWU either exempts law
students from signing the Community Covenant or amends the Covenant for law students in a way that ceases to discriminate.
TWU has started legal proceedings in each province reviewing these decisions.
Two Canadian provinces, New Brunswick and British Columbia, originally resolved to accredit the TWUs proposed law school but
have since reversed their decisions. Leaders from the Law Society of New Brunswick resolved in September not to recognize TWU
graduates, while the Law Society of British Columbia is holding a binding referendum with the provinces lawyers to decide the
issue, the results of which are expected to be released on October 30.
Opponents of the proposed law school assert that the Community Covenant offends the equality guarantee in the Canadian
Charter of Rights and Freedoms, while proponents note that the Charter also protects the freedom of conscience and religion as
well as freedom of association.
The Canadian Charter does not directly apply to TWUs policies, however, as TWU is privately administered, and the Charter only
applies to the actions of government institutions.
British Columbias Human Rights Code, which applies to TWU, prevents employers or individuals who provide services available
to the public from discriminating on the basis of either religion or sexual orientation. However, section 41 of the Code also permits
organizations like TWU to grant preference to members of an identifiable group or class of persons if the organization is not
operated for profit and has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of
persons characterized by a number of grounds, including religion.
This is not the first case in which TWUs Community Covenant has caused controversy. In the 1990s, the British Columbia College
of Teachers (BCCT) refused to approve TWUs application to assume full responsibility for a teaching education program. The
College stated the proposed program follows discriminatory practices which are contrary to the public interest and public policy.
The Supreme Court of Canada eventually determined that this decision was incorrect and held TWU could administer a teaching
education program. In resolving the competing values in the decision, the majority stated that [a]bsent concrete evidence that
training teachers at TWU fosters discrimination in the public schools of [British Columbia], the freedom of individuals to adhere to
certain religious beliefs while at TWU should be respected.
A factor that could be determinative in the present dispute is the standard of review by which the courts review individual law

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society decisions to not accredit TWUs proposed law school. While the Supreme Court of Canada reviewed the BCCT decision on
a standard of correctness, in recent years the Court has mandated courts to apply a more deferential standard of reasonableness
when reviewing decisions made by administrative bodies, such as a law society.
Ravi Amarnath was born and raised in Fort Saskatchewan, Alberta (Canada). He is a graduate student in law at the University of
Oxford.

Law Society of Canadian Province Nova Scotia is Found to Have Overstepped its Mandate,
Violating Religious Freedoms
By Ravi Amarnath | 10th February 2015

The first of a series of decisions that will shape how the balance is to be struck between Canadas constitutionally protected rights
of equality and freedom of religion has held that the latter cannot be unduly interfered with by a private institution.
Recently, a judge of the Supreme Court of Nova Scotia held that the Nova Scotia Barristers Society (NSBS), an organization which
regulates the legal profession in the Canadian province of Nova Scotia, overstepped its jurisdiction when it decided not to admit
students from Trinity Western University (TWU) to the bar.
TWU is a private, Christian university located in the Canadian province of British Columbia. It requires its students, faculty and
administrators to sign and abide by the terms of a Community Covenant (the Covenant), which includes a provision to abstain from
sexual intimacy that violates the sacredness of marriage between a man and a woman. Individuals who breach the Covenant are
subject to potential sanction.
In December 2013, TWU received approval from the government of British Columbia to administer a three-year undergraduate
law program starting in 2016 (a decision that has since been revoked and is under review). The provision of the Covenant that
regulates intimacy has made the proposed law school controversial, since same sex marriage is legal in Canada.
The Canadian Charter of Rights and Freedoms does not apply to TWUs policies because it is a private university, and the Charter
only applies to the actions of government institutions.
Moreover, section 41 of British Columbias Human Rights Code law permits private, religious institutions to grant preference to
members of an identifiable group or class of persons if the organization is not operated for profit and has as a primary purpose
the promotion of the interests and welfare of an identifiable group or class of persons.
In April 2014, the leaders of the NSBS resolved not to accredit graduates from TWU unless the school exempts law students from
signing the Community Covenant or amends the Community Covenant for law students in a way that ceases to discriminate. The
decision effectively prohibited future TWU graduates from meeting their requirements for entry into the legal profession in Nova
Scotia, barring a change in the schools policies.
The NSBS subsequently amended the definition of law degree in its Regulations, allowing its leaders to deny entry to students
who attend institutions which unlawfully [discriminate] in its law student admissions or enrollment policies or requirements on
grounds prohibited by either or both the Charter of Rights and freedoms or the Nova Scotia Human Rights Act.
In a lengthy decision, Justice Jamie Campbell held the NSBS overstepped its statutory mandate to uphold and protect the public
interest in the practice of law and regulate the practice of law by trying to regulate TWU itself.
Justice Campbell held that NSBS actions were directed toward the institution of the law school and not the quality of the law
degree, or the qualification or lack of qualification of the student or potential lawyer in Nova Scotia (para 172).
The judge further explained that the public interest in the practice of law does not extend to how law schools function. Neither
the degree of moral outrage directed toward the policy, nor the extent to which it is deemed to be in the public interest to attack it,
change that (para 176).
At the conclusion of the judgment, Justice Campbell addressed the clash of rights at the heart of the matter, stating: The
discomforting truth is that religions with views that many Canadians find incomprehensible or offensive abound in a liberal and
multicultural society. The law protects them and must carve out a place not only where they can exist but flourish (para 271).
The NSBS has not determined whether it will appeal the decision. In the meantime, legal proceedings continue in the Canadian
provinces of Ontario, and British Columbia, where the respective law societies have outright refused to recognize TWU graduates

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for bar accreditation.


Ravi Amarnath was born and raised in Fort Saskatchewan, Alberta (Canada). He is a graduate student in law at the University of
Oxford.

Navigating the Troubled Waters of Religious Accommodation


By Stephanie Tsang | 29th January 2014

Reports concerning a situation in York University, Toronto, have reignited discussion on the complex subject of the right to religious
accommodation.

A male student, enrolled on an online course, requested permission from his professor to be excused from participating in group
work with female students in person, citing his undisclosed religious belief as his reason for seeking accommodation. His professor
rejected his request essentially on the grounds of gender equality. However, following the professors consultation with the Centre
for Human Rights and the program dean at the university, the dean ordered the professor to accommodate the student. The
professor has continued to refuse to comply with the order, stating:
My main concern was that for religious beliefs, we also can justify not interacting with Jews, blacks, gays, you name it. And if this
were allowed to go through, then all these other absurd demands could be made.
Many believe that the university had taken political correctness to the extreme.
The fact that this case has not invited much international media attention could be due to the fact that the student did not pursue his
case any further. But this is yet another example being added to the troubled waters of religious accommodation across Western
democracies.
The European Court of Human Rights has famously captured the right to religion as one of the most vital elements that go to

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make up the identity of believers and their conception of life. But the idea that an individual may cite her religious convictions in
order to be treated as an exception to the norm has resulted in frustrated responses. Only a month ago, disbelief followed Marks &
Spencers decision to endorse a policy, now withdrawn, which allowed Muslim members of staff to refuse to sell customers alcohol
at their counter. Of course, religious claimants who have felt unfairly treated have also resorted to the courts, as in the well-known
European Court of Human Rights case of Eweida & Others v UK, where pitting the right to religion against the rights of others led to
mixed results.
The Professors comment captures the fear of the religious trump card over the rights of others, which would result in room for
continuing misogyny, racism and homophobia. Whilst many may reject the view that religion should be a trump card, is it time
to take a step further and establish a hierarchy of rights? The Canadian Supreme Court has explicitly maintained that there is
no hierarchy of rights under the Canadian Charter of Rights and Freedoms. There could be a pragmatic argument in favour of a
hierarchy the sake of clarity: whilst religious freedom is to be protected, a bright line is drawn so that accommodation simply cannot
be given at the expense of, for example, gender equality. If the default is that religion tends to become a trump card, steps should
be taken so that it is given an appropriate place.
On the other hand, such a move could reduce the right to religion (particularly the right to manifest ones religion) to close to
nothing, as often the most obvious religious manifestations are the very ones that sit uncomfortably against secular ideas of, for
example, gender equality. To have such a hierarchy would make religious accommodation meaningless. Another hesitation is that
a rigid ranking of rights may leave little room for the nuances found in each case. In particular, one interesting detail in the York
University scenario is that the student would have had a certain expectation that his online course meant that he was not going to
meet any other students in person. The question is whether this makes a difference at all, and if so, how.
The idea of religious accommodation remains frustratingly complex, as at its core is a demand to clarify the purpose and practice
of human rights. If a certain conception of human rights is protection against the tyranny of the majority, then there must be room
for those who do not conform to the norm. It is as palatable as many ideas in the abstract but in practice, we continue to navigate
these troubled waters.
Stephanie Tsang read for the BCL in 2012-2013. She is currently studying for the Bar Professional Training Course in London.

Religious Anti-Gay Refusal Valuing Dissent Without Making it Lawful


By Davina Cooper | 22nd July 2014

According to Supreme Court judge, Lady Hale, the law has yet to find the right balance between accommodating peoples beliefs
and avoiding anti-gay discrimination.

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Her remarks, made during a lecture at the Law Society of Ireland, take a position common amongst judges, politicians, activists
and scholars seeking to find a midway point between privileging beliefs and privileging non-discrimination. But in suggesting a
compromise that gives some religious folk the right to conscientiously object, another, quite different, settlement is ignored. This
is one that rejects a legal entitlement to discriminate, while recognising that resistance and dissent within workplaces, including
government ones, can be valuable.
Christian claims to be allowed to lawfully discriminate against lesbians and gay men have emerged globally. In the UK, the best
known case is that of Islington registrar Lillian Ladele who took her case as far as the European Court of Human Rights arguing
for the right to refuse to perform, or even register, lesbian and gay civil partnerships. Other British cases have involved guesthouse
owners, marriage guidance counsellors, adoption providers and foster parents arguing that their deeply held Christian beliefs
should protect them from the reach of (gay) equality law.
While many secular liberals applaud the court judgments, which have almost unanimously refused to exempt religious
objectors from treating lesbians and gay men equally, more radical perspectives have been mixed. For some, the concerns
of homonormativity of mainstream middle-class life underlying many gay rights claims generate indifference. Others see
conservative Christians as rightfully entitled to express deeply held views without penalty, even if this means refusing to do what
theyre told. Indeed, the demand on state employees and others to comply with their employers instructions seems hard to
recognise as the rallying cry of a progressive state, even if equality is involved.
But does this mean anti-gay refusal should be accommodated, particularly once we bear in mind that equality law not only protects
religious beliefs but philosophical ones as well? Lady Hale may wish to see more recognition of religious beliefs and conscience,
but exemptions here will also apply to philosophical-based objections. This means secular conservatives and radicals can also,
at least theoretically, try to argue that their deeply held beliefs include a principled rejection to providing services that support gay
liberal life.
My argument isnt for religious beliefs to be given more weight than philosophical ones. Rather, since contemporary British antidiscrimination law is minimising the distinction, we need to ask how belief-based refusals, in general, to provide gay people with a
service should be regarded.
Many argue its absurd for British law to legislate gay equality and then provide an exception for those whose objections are
grounded in belief what other reasons for demanding an exception are likely to be articulated? But and this is key state laws
refusal to accommodate discrimination isnt the final word. If we adopt a legal pluralist perspective, multiple legal and normative
orders can be found co-existing within the same social space. This means the religious laws animating conservative Christian
refusal occupy and confront secular state law from a shared terrain.
Should state law then recognise religious law, in the sense of treating it as a legitimate basis for equality exemptions?
Conventionally, such recognition is seen as deference to religious authority. But we can also see it as asserting a mono-legal mindset in which state law takes upon itself the authority (and responsibility) for establishing the terms and provisions for law-animating
action. Creating a situation where state law is the only law in town, enormous pressure is placed on the states legal infrastructure
to recognise religious refusal since if state law doesnt, who or what can?
There is an alternative. State law can refuse to accommodate religious motivations for discriminatory action. At the same time, we
a wider public can stand back from state law to recognise that other, competing, legal and normative orders also shape what
people do. Public bodies, such as local councils, become some of the sites where these conflicts are played out.
Conflict between people over their views and beliefs isnt always productive. It can make public action impossible, exacerbate
exclusionary and hostile organisational cultures, and generally make people dread going to work. At the same time, political, judicial
and managerial demands that workers do what theyre told, or face charges of insubordination, treat workers like machines, and
at considerable cost disregard the vibrant political character of workplace struggles. The challenge is to find institutional ways of
supporting conflict, involving other modes of performance. Where can we look for examples of how to do dissent and disagreement
in constructive, stimulating, even pleasurable, ways?
Dr Davina Cooper is Professor of Law & Political Theory, University of Kent.

Conscientious Objection to Military Service in International Human Rights Law


By Ozgur Cinar | 30th January 2014

Conscientious objection to military service is a means of resisting war and military service for reasons of conscience based on
profound religious, ethical, moral, philosophical, humanitarian, or similar convictions. It generally concerns the exemption of
people from fulfilling legal obligations that would necessitate a violation of their conscience, religion, or belief. The phenomenon of

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conscientious objection appears in diverse forms and covers a wide variety of societal issues from nonpayment of tax for military
expenses to the performance of abortions. However, conscientious objection is more commonly associated with refusal to perform
military service.
According to Moskos and Chambers, conscientious objection in the military context is a fundamental part of an individuals
relationship with the State: it calls into question the obligation to defend the nation, which is considered to be one of the most
important duties of the citizen. When conscientious objectors refuse to perform such a duty they, in fact, experience a conflict in
their relationship with the State, a conflict between the beliefs of the objector and the duties laid down in positive law. By making a
declaration, the objector consciously avoids performing obligations in the name of a superior command originating from conscience.
Conscientious objection also exposes the limits of what a state can demand of its citizens where that demand may oppose
individual conscience. This situation leads to the dilemma of whether a state can intentionally violate an individuals conscience and
has attracted considerable controversy. It has been examined from historical, sociological, and political perspectives, as well as
from an activist viewpoint. This subject has also excited interest in international human rights law.
My recent book on conscientious objection is composed of five chapters. Part I is divided into three chapters, of which the
first chapter explores the concept of conscience with a view to understanding the meaning and potential scope of the right to
conscientious objection from a legal perspective. The evolution of the concept of conscientious objection is expounded in the
second chapter. In the light of the first chapter, this chapter shows that the secularization of conscience has played an important
role in the concept of conscientious objection. An attempt is made in the third chapter to define various types of conscientious
objectors in the light of the evolution of conscientious objection. A legal analysis of different forms of conscientious objection is
conducted; current debates on how these different forms should be interpreted at national and international levels, and whether
they are officially recognised is also addressed.
Part II investigates the right to conscientious objection in international human rights law as a legitimate exercise of freedom
of thought, conscience, and religion. This part is divided into two chapters dealing with the content and scope of the right to
conscientious objection at both the international and regional level. United Nations mechanisms are examined at the international
level in chapter 4; at the regional level, the European and Inter-American mechanisms are analysed in chapter 5.
The conclusion summarizes the current international standards on the right to conscientious objection to military service.
Conscientious objection is now accepted as a legitimate expression of freedom of thought, conscience and religion. Present
international law standards suggest that alternative service should be of a purely civilian nature and should be in the public interest
and not be, in any way, of a punitive or deterrent nature.
zgr H. nar is Guest Editor, Religion and Human Rights and Senior Associate Member, Seesox, St Antonys College, University
of Oxford, UK.

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Freedom of Religion and Belief in Turkey


By Ozgur Cinar | 10th January 2014

One of the fundamental values of a democratic society is the freedom of thought, conscience and religion. From this freedom derive
the concepts of pluralism, tolerance and open-mindedness, hallmarks of a democratic society. In its religious dimension, it is a
vital element of the identity of believers and their conception of life, but it is also a precious asset for those with no religiously held
beliefs such as atheists, agnostics and sceptics.
The freedom of thought, conscience and religion is recognised by the key international human rights documents such as Article
18 of both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Article 9
of the European Convention of Human Rights, Article 10 of the Charter of Fundamental Rights of the European Union. The
Republic of Turkey (hereafter Turkey) acknowledges this freedom, in principle, through international treaty commitments, but its
implementation has been inconsistent.
Turkey is a candidate to accede to the European Union (EU). The Development and Justice Party (Adalet ve Kalknma Partisi
AKP) came to power in 2002, promising to introduce freedoms, and in its eleven years in government has made some important
legal changes in conformity with the political criteria of the EU, but various restrictions connected to the freedom of thought,
conscience and religion remain unaddressed. For instance, religious minority groups, such as Christians, Jews and Alevis
(adherents of a sect of Islam) have important limitations on their religious and community life and though, initially, concessions
aimed at incorporating these minorities were made, they now seem to have abated. Moreover, there is still compulsory religious
education in schools and no recognition of conscientious objection to military service.
The particular problems of Turkey today can be better understood by a brief look at its history. When the Republic of Turkey was
established on the remnants of the Ottoman Empire, a secular state system based on the notion of the nation-state replaced the
existing Ottoman system of millets (confessional communities). While the rights of non-Muslims were safeguarded in the Treaty
of Lausanne (1923), signed during the founding of the Republic, in practice we can see that they have encountered difficulties as
regards the exercise of these rights.
Obstacles to the freedom of religion and belief in Turkey increased during the 28 February Process (military intervention). Hence,
efforts were made to reshape society in the name of combating reaction. While during this process there was a constriction of
political and civil rights, we can also see pledges made to take steps in order not to become isolated from the EU.
In its 2012 report, the United States Commission on International Religious Freedom included Turkey amongst countries where
the most severe violations of religious freedoms occur, pinpointing the most serious problem as state interferences in the inner
dimension of religious freedom (or forum internum). We also come across these unfavourable assessments in reports by the United
Nations Special Rapporteur on Freedom of Religion or Belief and in EU progress reports.
In a special issue (Religion and Human Rights 8 (2013)), we endeavoured to comprehend developments in the acknowledgement
of the right to freedom of religion and belief in Turkey, a country that describes itself in its constitution as a democratic and secular
state. Our focus was restricted to the most topical and urgent issues.
In her article, Rossella Bolletti tried to find a way through the legal, political and social obstacles to a satisfactory solution regarding
the question of headscarves.
Mine Yldrm discussed the legal difficulties faced by non-Muslims and Alevis as regards places of worship.
zgr H. nar addressed the question of the compulsory religious education/instruction given in Turkish schools, which has been
the subject of criticism on account of its Sunni Islamic bias.
In the last article, Hasan Sayim Vural detailed discussions by constitutional law scholars regarding the right to freedom of religion
and belief in Turkey and endeavoured to find answers to the question of how domestic judicial mechanisms interpret this freedom.
Jeroen Temperman is Editor-in-Chief, Religion and Human Rights.
zgr H. nar is Guest Editor, Religion and Human Rights and Senior Associate Member, Seesox, St Antonys College, University
of Oxford, UK.

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Introduction Rachel Wechsler

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Modern Slavery Bill A Brief Review

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Scotlands Answer to Modern-Day Slavery

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Campsfield Immigration Removal Centre: 20 Years Too Long

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Government Lodges Plans to More Than Double Oxfordshire Immigration Removal Centre

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Hounga v Allen: Trojan Horse Comes to the Rescue of Illegal Migrants

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What Traffickers Know that the Court of Appeal Does Not

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The Business of Traffic in Humans

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Judicial Review of Migrant Detention in Europe: In Search of Effectiveness and Speediness

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Europol and the Fight Against Human Trafficking

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High Time for Europe to Offer Temporary Protection to Refugees from Syria?

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Migrant Push Backs at Sea are Prohibited Collective Expulsions

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United Nations Human Rights Council: Commission of Inquiry into Human Rights Abuses in the
Democratic Peoples Republic of Korea

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Navigating the Turkish Legal Regime: Syrian Refugees in Istanbul

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Palestinian Refugees in Syria: A Primer For Advocacy

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Implementation of Tripartite Agreement on Hold

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Angel: Afro-Honduran Migrant Tortured and Imprisoned in Mexico

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Providing Syrian Survivors of Torture Access to Rehabilitation Services

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The Unified Screening Mechanism: Hong Kong to Assess Refugee Claims Alongside Torture Claims

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Second Strike and You are (Finally) Out? The Israeli Supreme Court quashes (again) the Prevention
of Infiltration Law

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Detention of African Asylum Seekers in Israel: Welcome to Round Three

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Introduction

By Rachel Wechsler
The Oxford Human Rights Hub Blog has consistently drawn attention to violations of irregular migrants human rights and has
called for better protections for this particularly vulnerable population. Many of the posts in this chapter also highlight the tension
between migrants human rights and issues of national security, immigration control, and xenophobia, which often plays a role in the
policy responses of destination countries.
Not only are the journeys that irregular migrants make from their homelands often inherently treacherous, but migrants are also
frequently faced with harsh treatment and human rights violations while en route to their destination countries. In his post (Migrant
Push Backs at Sea are Prohibited Collective Expulsions p 177), Nikolaos Sitaropoulos discusses the tragic drowning of
migrant women and children in the Aegean Sea following interception by the Greek coast guard, which the survivors allege was an
unlawful push back or collective expulsion in violation of Article 4-4 ECHR. Furthermore, Denise Gonzalez draws attention to the
systematic abuses perpetrated against migrants traveling through Mexico by highlighting the plight of an Afro-Honduran migrant
who was tortured, imprisoned on baseless charges, and racially discriminated against while en route to the United States (Angel:
Afro-Honduran Migrant Tortured and Imprisoned in Mexico p 182).
Irregular migrants who manage to reach their destination countries are often detained based on their illegal status. Several posts
in this chapter question and criticise immigration detention policies and the conditions faced by detained migrants on the basis of
their compatibility with human rights standards. Located a mere six miles north of the Oxford Human Rights Hubs headquarters,
Campsfield House is a prison-like immigration removal centre that has been the subject of serious human rights critique, often
within the context of broader criticism of UK immigration policy. Jo Hynes (Campsfield Immigration Removal Centre: 20 Years
Too Long p 168) and Melanie Griffiths (Government Lodges Plans to More than Double Oxfordshire Immigration Removal Centre
p 168) highlight unfair treatment of detained migrants at Campsfield and elsewhere in the UK, including indefinite periods of
detention, racial discrimination, and overcrowding. They also describe the strong community and academic response to the human
rights abuses at Campsfield, in the form of an active campaign to close the facility and prevent its proposed expansion, which has
achieved some degree of success.
Violations of migrants human rights in the context of immigration detention are certainly not limited to the UK. The European
Court of Human Rights has heard several such cases (e.g. Suso Musa v. Malta [2013] ECHR 721, Rehbock v. Slovenia [2000]
ECHR 645), and in M.A. v. Cyprus [2013] ECHR 717, it set out general principles for the judicial review of migrant detention, with
which states must comply in order to comport with Article 5(4) ECHR (Judicial Review of Migrant Detention in Europe: In Search
of Effectiveness and Speediness p 174). These principles, which Nikolaos Sitaropoulos argues are particularly significant in light
of the trivial approach many states take to depriving migrants of their liberty, include making judicial review sufficiently accessible
to detained migrants, ensuring that the process is expedient, and ensuring that it leads to termination of the detention if it is
determined to be unlawful.
In Israel, the Supreme Court has twice quashed legislation authorising the detention of irregular migrants for lengthy periods based
on violations of the constitutional rights to liberty and human dignity (R Ziegler, Second Strike and You Are (Finally) Out? The Israeli
Supreme Court Quashes (Again) the Prevention of Infiltration Law p 186). In his follow-up post, Ruvi Ziegler predicts that the third
edition of the legislation, which is premised on the same tenets as the first two versions, will be challenged on constitutionality
grounds in the near future (Detention of African Asylum Seekers in Israel: Welcome to Round Three p 187).
A common push factor underlying migration decisions is internal conflict, as is the case for the millions of refugees fleeing civil
war in Syria. There have been reports of widespread torture, rape, kidnapping, and the targeting of civilians, making the conflict in
Syria one of the most egregious human rights atrocities the world has ever witnessed, in the words of Annie Sovcik (Providing
Syrian Survivors of Torture Access to Rehabilitation Services p 183). Sovcik emphasises the great need for mental health and
other rehabilitation services for survivors of torture in Syria, and encourages states to donate funds for this purpose. In addition,
Cynthia Orchard and Dawn Chatty call upon the European Council to utilise its Temporary Protection Directive (2001/55/EC) to
implement a coordinated temporary protection programme for Syrian refugees, granting them residence in EU Member States
until circumstances in Syria become safe enough for them to return (High Time for Europe to Offer Temporary Protection to
Refugees from Syria p 176). Doing so could alleviate some of the burden borne by Turkey, Syrias neighbour to the north, to where
approximately one million Syrian refugees have fled in search of temporary protection status and/or assistance with resettling in a
third country (S Topouzova, Navigating the Turkish Legal Regime: Syrian Refugees in Istanbul p 179).
Notably, it is not only Syrians who have been impacted by the armed conflict in Syria; the nearly half a million Palestinian refugees
who had sought protection in the country prior to the war, many of whom reside in the besieged Yarmouk refugee camp, have
suffered greatly. Armed forces have blocked humanitarian aid to the camp, and thousands of refugees have been trapped
without adequate food, water, medical care, and other basic necessities for long periods. Nanjala Nyabola asserts that denying
humanitarian aid agencies access to Yarmouk violates Common Article 3 of the Geneva Conventions, which concerns the
treatment of civilians and non-combatants in internal conflicts (Palestinian Refugees in Syria: A Primer for Advocacy p 180).

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Several blog posts over the past year have focused on responses to the major worldwide problem of human trafficking, which is
an affront to human rights and often intersects with migration, security, poverty, and gender issues. In the UK, the Modern Slavery
Act 2015 was first introduced in the House of Commons in June 2014, and became law on 26 March 2015. While applauding the
awareness-raising effect of the legislation, Peter Carter criticises its lack of vision (Modern Slavery Bill A Brief Review p 166).
Mei-Ling McNamara further notes that it has been criticised for its conspicuous lack of victim support, in contrast with Scotlands
Human Trafficking and Exploitation bill (introduced in the Scottish parliament on 11 December 2014), which takes a traumainformed approach to helping victims (Scotlands Answer to Modern-Day Slavery p 167).
The UK Court of Appeal has also been criticised for failing to adequately protect trafficking victims rights. In the cases of Reyes
and Suryadi v Al-Malki [2015] EWCA Civ 32 and Benkharbouche and Janah v Embassy of the Republic of Sudan and Libya [2015]
EWCA Civ 33, the Court held that diplomatic immunity prevented the victims from pursuing racial discrimination, harassment,
and inadequate compensation claims against their traffickers (What Traffickers Know that the Court of Appeal Does Not p 171).
Catherine Briddick calls this judgment frankly breath-taking and concludes that it will facilitate and compound . . . [the] exploitation
and abuse of domestic workers, which are disproportionally women. The Court of Appeal also blocked the racial discrimination
claim of a trafficked migrant worker on the basis of the illegality doctrine in Hounga v Allen [2012] EWCA Civ 609 , but fortunately
the Supreme Court later reversed this decision (Hounga v Allen: Trojan Horse Comes to the Rescue of Illegal Migrants p 170).
Alan Bogg asserts that this result . . . is to be applauded, despite the fact that it has regrettable exclusionary effects on nontrafficked but nevertheless vulnerable migrants.
A valuable tool in the fight against human trafficking is Europol, which coordinates and facilitates information-sharing among the
EU Member States national police forces, as trafficking is often a cross-border crime (O Johnstone, Europol and the Fight Against
Human Trafficking p 174). Another useful tool is the concept of corporate social responsibility with respect to upholding human
rights, as reflected in the United Nations Guiding Principles on Business and Human Rights. However, as Marija Jovanovic points
out (The Business of Traffic in Humans p 172), most anti-trafficking policies aimed at businesses are merely voluntary and lack
any enforcement mechanism, which limits their effectiveness.
The posts included in this chapter effectively call attention to significant developments in human rights law and shocking human
rights violations impacting migrants, asylum-seekers, and trafficking victims over the course of the past year. They remind us
of the importance of continued advocacy on behalf of vulnerable segments of our society, whose human rights remain far from
guaranteed.
Rachel J. Wechsler, Esq. is a DPhil Candidate in Criminology at the University of Oxford and a former Editor of the Oxford Human
Rights Hub Blog.

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Modern Slavery Bill A Brief Review


By Peter Carter QC | 2nd December 2014

How does it happen? The fire brigade is called to a fire in a terraced house. When the firemen arrive the doors and windows are
locked and bolted. They break in to discover that the mains electricity cable had been dangerously diverted to provide power for a
cannabis farm. Hidden in the remains are frightened young Asian men of indeterminate age. They have no documents to establish
who they are or where they come from. They speak little or no English. The police are on the scene. They arrest the men. What
happens to them? Too often and for far too long now they like other people found at brothels or committing street crime, or
running away with forged or stolen identity documents have been treated as criminals and sent to prison. That is now beginning
to change, but too slowly.

It is 250 years since Lord Mansfield ruled in Somerset v Stewart (1772) 98 ER 499 that English law will not tolerate slavery within
England. Blackstone in his Commentaries boasted this spirit of liberty is so deeply implanted in our constitution, and rooted even
in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the law and so far becomes a
freeman . In 1794 the US Congress prohibited the slave trade by the Abolition of Slave Trade Act 1794. Britain took until 1807.
The Slave Trade Abolition Act was the culmination of a campaign begun in Parliament in 1788. Then slavery itself was abolished in
the Colonies and temporary apprenticeship substituted by the Slavery Abolition Act 1833.
Modern slavery and associated human trafficking has become an international phenomenon, producing global profits for the
perpetrators similar to that produced by drug trafficking. But it is still largely hidden. The Palermo Protocol (2000), the Council of
Europe Trafficking Convention (2005) and the EU Directive 20011 (in force from last year) have established a process for identifying
victims of trafficking and treating them as victims rather than criminals or as illegal immigrants. These instruments recognise the
extent of the problem. With one or two notable exceptions (R v O [2008] EWCA Crim. 2835, R v L [2013] EWCA Crim 991) the
courts have been slow to respond. There remains incredulity that it can happen here (and here can be wherever in the world you
happen to ask).
We now have the Modern Slavery Bill. The purpose of the Bill is twofold (1) to enhance the prospects of eradicating trafficking
and exploitation by means of the successful prosecution of the perpetrators; (2) to rescue and protect victims of modern slavery.
There is a causative link between these two aims. In order to achieve the first of these aims, the second is critical. Successful
prosecution will deter perpetrators.
How much does it improve the present law and practice? It has been described by Anthony Steen (Guardian 3.11.14) as A lost
opportunity. It is certainly flawed. A Joint Committee of Parliament produced a report on the first draft Bill. It recommended a
thorough revision of the law simplify the current offences of trafficking and slavery rather than consolidate them into a single

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Act introduce specific offences of exploitation, especially of children create a statutory structure to replace the National Referral
Mechanism (which largely determines the fate of victims and is acknowledged to fail too many) in order to improve effective
identification of victims provide a statutory scheme for protection of victims enhance the independence of the Anti-Trafficking
Commissioner
In her response to this Report the Home Secretary said:
Modern slavery is an appalling crime. Traffickers and slave masters use whatever means they have at their disposal to coerce,
deceive and force individuals into a life of abuse, servitude and inhumane treatment. Organised crime groups systematically exploit
large numbers of individuals by forcing and coercing them into a life of abuse and degradation. It has no place in this country
today.
Despite these words, uttered with undoubted sincerity, the Joint Committees proposals have been largely rejected by the Home
Office. The current Bill indicates that a lot of thought has been expended by officials on detailed statutory language but there is not
much vision.
Some will ask whether this Bill is better than nothing. I believe that it is. It is not yet a lost cause. At the very least the publicity
afforded to the Bill have helped to increase awareness.
Peter Carter QC is a barrister practising from Red Lion Chambers in London.

Scotlands Answer to Modern-Day Slavery


By Mei Ling McNamara | 21st March 2014

A new standalone human trafficking bill for Scotland has been quietly gaining momentum in the corridors of Holyrood.
On Monday it was announced that a formal proposal by Labour MP Jenny Marra for a dedicated Human Trafficking (Scotland)
Bill has been adopted by Justice Secretary Kenny MacAskill, which hopes to tighten up criminal justice measures and provide
comprehensive support to victims of human trafficking. This bill, which has received cross-party support at a time when the
referendum for independence is dividing opinion, has promised to be introduced before the end of the parliamentary session.
This bill could not have come at a more significant time in Scotlands history. As independence looms on the 2014 agenda, and
debates to abolish the centuries-old corroboration in Scots law rage in parliament, the country has seen an alarming rise in the
amount of people found to be trafficked for both sexual and labour exploitation. While the UK Human Trafficking Centre reported
99 people in 2013 were referred to agencies in Scotland as being potential victims of trafficking a 3 per cent rise since 2012 the
government, law enforcement and social services know this is a mere fraction of the total victims who are able to come forward.
One of the hallmarks of human trafficking is not only the shadowy nature of its networks, but the ruthless criminalisation of its
victims. Many do not come forward fearing recrimination and prosecution by authorities, and survivors have told me they often
chose to remain in the trafficked situation, rather than face a host of terrifying unknowns outside. It may sound counter-intuitive,
but a chaotic existence in a trafficked situation has known quantities even if these stem from control, power and humiliation. Its a
travesty of justice that many face re-victimisation within the British courts. This new bill seeks to stymie that.
The acceptance by the Scottish government to introduce this bill is significant. While the Modern Slavery Bill introduced by Theresa
May in Westminster has its merits, it has been notably criticised for its conspicuous lack of victim support, focusing instead on a
prosecutorial approach against traffickers. Yet without safeguards to prevent re-trafficking, the bill risks isolating the very people
it claims to protect. Crucially, the Human Trafficking (Scotland) Bill has been developed in response to what it sees is a traumainformed approach to sexual and labour exploitation, while maintaining the ethics and jurisprudence of human rights law.
Scotlands human trafficking bill has some way to go before it can be voted into law. Yet news of its introduction into the Scottish
parliament shows progress and optimism a country addressing the intractable challenge of human trafficking without steering off
course into the murky waters of immigration policy.
Mei-Ling McNamara is a journalist and documentary filmmaker, working in both print and broadcast media. She is a doctoral
candidate in Trans-Disciplinary Documentary Film at the University of Edinburgh where her work is focused on forced labour,
trauma and the politics of slavery in Britain.

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Campsfield Immigration Removal Centre: 20 Years Too Long


Jo Hynes | 23rd June 2014

Campsfield House, an immigration removal centre in Kidlington run by Mitie for profit, is now in its 20th year of operation.
Twenty years of detention without trial, without time limit, without proper judicial oversight and with little chance of bail for the
detainees- all just 6 miles north of Oxford.
Campsfield detention centre on first glance certainly looks like a prison; its category C prison security would certainly suggest so.
Yet it is far from such. In theory, detainees are supposed to be held here for a short, temporary period before they are deported, if it
is deemed a risk that they will abscond. Instead, a system of indefinite detention, largely for administrative reasons, has arisen, with
the average detention lasting 4-5 months, and some for 2-3 years. This creates a dual uncertainty hanging over detainees, since
some have been held here for several years, yet simultaneously deportations can occur with next to no warning, in some cases the
next day.
The UK detains more migrants, for longer and with less judicial oversight, than any other country in Europe. We are also the
country in which the role of private companies in running detention centres (7 out of 10 detention centres) is most prominent. The
Council of Europes Human Rights Commissioner, as well as organisations such as Amnesty International, have called on the UK to
revise its immigration detention policy and reverse the trend to ever-more immigration detention- even the Lib Dems in their latest
Immigration Policy Paper propose to end indefinite detention for administrative purposes. The facts are clear: immigration detention
doesnt act as a supposed deterrent to immigration and contravenes basic human rights.
In the past month Campsfield has seen a 50 detainee strong hunger strike, after one detainee, Mauladad Kaukar, was forced to
sign a voluntary deportation form, despite speaking no English and not having the form explained to him. Both him and Muswar
Khan, another detainee who could speak English and who was advocating on his behalf, were both racially abused by staff
and threatened with solitary confinement. In the case of Muswar Khan, he has also had his access to the internet and right to
work in the centre taken away, after staff realised he was writing emails concerning Mauladads treatment and for labelling the
previously unlabelled Independent Monitoring Board complaints box. The hunger strike has since stopped, but Muswar has brought
Mauladads case to the Chair of the Independent Monitoring Board. Yet with 31 of the 45 complaints made by detainees being
referred back to the centre to be dealt with internally, according to the IMBs most recent annual report, Muswar is sceptical about
this achieving much.
Since the opening of the centre, an active Close Campsfield campaign has been in operation to work for its closure. This past
month the group, alongside Oxford University Amnesty International, have been coordinating an open letter to David Cameron,
condemning Campsfield detention centre and the principle of indefinite detention. So far the letter has the support of over 40
academics, including several Heads of Houses, Ken MacDonald QC and Professor Danny Dorling.
Not often do such blatant abuses of human rights happen so systematically, so openly and so close to home.
Jo Hynes is a second year geography undergraduate at Oxford University and President of Oxford University Amnesty International
2014-5.

Government Lodges Plans to More Than Double Oxfordshire Immigration Removal Centre
By Melanie Griffiths | 17th November 2014

The Home Office submitted plans for major expansion of Campsfield House, an Immigration Removal Centre situated just outside
Oxford. Local political, religious and charitable organisations are coming together to fight the proposals on the basis that indefinitely
detaining people for immigration purposes is inhumane, doesnt fulfil immigration objectives and is prohibitively expensive.
Immigration detention in the UK
Immigration detention is an administrative, rather than punitive system. People are detained not as the result of a conviction, but
for the purpose of an immigration goal, such as deportation. Our detention system is one of the largest in Europe, but has been
repeatedly criticised domestically and internationally, including for inappropriately detaining vulnerable people.
The Home Office argues that people are detained for minimal periods, usually just before removal from the country. However,
many detainees arent at the end of their immigration case but have asylum claims or immigration appeals pending. Others cannot
be removed, often through no fault of their own. Indeed, my PhD focused on people with disputed identity, many of whom were
detained for long periods as the authorities fought over their identity. Unlike the rest of Europe, there is no maximum period for
detention in the UK, meaning that people can be detained indefinitely.

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Campsfield opened as an Immigration Removal Centre in Kidlington in 1993. Until recently, there were 216 bed spaces but now, as
a result of extra beds being squeezed into increasingly overcrowded rooms, there are 276 spaces. If plans to build a new section
of the centre go ahead, the figure will increase dramatically to over 560 spaces. This would make it one of the largest detention
centres in the whole of Europe.

Like other centres, Campsfield resembles a prison. People are held against their will, surrounded by surveillance cameras, behind
locked gates and razor wire topped fences. Campsfield has long experienced problems, with over half the detainees on hungerstrike just four months after the centre opened in 1993 and the first riot occurring three months later. There have since been further
hunger-strikes, escapes, disturbances and suicides. Just last year there was a major fire. Despite previous warnings, no sprinkler
system had been fitted, significantly increasing the danger and destruction.
Expansion plans
The UK as a whole now has over 4,000 immigration bed spaces, double the number just six years ago. Already this year an extra
800 spaces were created as a result of the re-designation of a prison as an Immigration Removal Centre and the addition of beds
at several existing centres. The plan to build a new, bigger centre at Campsfield, would create 290 additional beds.
The land for the proposed build is Green Belt land, meaning that there must be very special circumstances for it to be used
for construction. The Home Office is arguing that this stipulation is met by a need for more immigration detention space, so as
to increase removals. However, as Home Office statistics demonstrate, although we detain more migrants than ever before, we
remove ever fewer from our shores. Rather, people are routinely detained even when they are not at the end of the legal process
and/or when they cannot be removed. This means that they are simply warehoused in detention for long periods, or are needlessly
detained only to be released again.
As such, detention not only damages individuals, but also fails to achieve the governments own objectives. These and other
aspects of detention are currently being scrutinised by the first ever Parliamentary Inquiry on the topic.
Making your voice heard
The Campsfield plans are generating growing local opposition. In recent days the Prime Minister has received letters of concern
from 21 concerned local organisations and another from over 70 senior Oxford University academics. The latter was launched by
Baroness Helena Kennedy QC on 15 November outside the Radcliffe Camera.

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Individuals can also feed into the decision-making process by writing to their MPs and submitting planning objections to the
Cherwell District Council. The Planning Committees decision is likely to be made on 22nd January 2015 and submissions should
be made in December 2014. The Campaign to Close Campsfield is running a workshop on 3rd December 2014 on making planning
objections. Further details, including template letters to send MPs, are available on both the Campaign to Close Campsfield and
Detention Forum websites. If you want to learn more about supporting people already in detention, contact Asylum Welcome.
Coming up to a general election, it is hardly surprising that immigration issues are high on the national agenda. Unlike previous
elections, however, it appears as though this time, the controversial issue of immigration detention is very much at the heart of the
debate.
Dr Melanie Griffiths completed a DPhil on the UKs asylum and detention system at the University of Oxford in 2014. She is
currently an ESRC Future Research Leaders Fellow at the University of Bristol.

Hounga v Allen: Trojan Horse Comes to the Rescue of Illegal Migrants


By Alan Bogg | 17th September 2014

In Hounga v Allen [2014] UKSC 47 the Supreme Court took the opportunity to overrule one of the most controversial Court of
Appeal decisions on employment rights in recent times, where the Court of Appeal held that the doctrine of illegality barred the race
discrimination claim of a trafficked migrant worker, Ms Hounga.
The Supreme Court reversed the Court of Appeal on the illegality point and upheld Ms Houngas race discrimination claim. This
means that illegal migrants now enjoy (some) employment rights in (some) circumstances, rather than being outlaws deprived
of their fundamental human rights in every circumstance. In so doing, it puts to an end a short but shameful episode in the life
of the English common law. It is a result that is to be applauded. How enduring this judgment will prove to be is, however, an
open question. While all of the Justices concurred in the result, Hounga offers two approaches to the illegality enquiry in race
discrimination claims. Lord Wilson (with whom Lady Hale and Lord Kerr agreed) delivered a speech that was ripe with promise for a
progressive development of the law on illegality in respect of employment claims. Lord Hughes (with whom Lord Carnwath agreed)
delivered a speech that would have preferred a much narrower approach to the disposal of the case.
Essentially, Lord Wilson appears to suggest a three-stage approach to the determination of the illegality issue. First, was the
claimants illegality inextricably bound up with the tort claim? While Lord Wilson emphasized that this enquiry could not be purged
of subjective considerations, thereby deprecating approaches that purported to offer an objective causation-based analysis, he
nevertheless concluded that the Court of Appeal had fallen into error in concluding that there was an inextricable link. The illegality
was part of the context, the circumstances that went to constitute her vulnerability to racial abuse, rather than integral to her tort
claim that she had been treated less favourably because of her race. Lord Hughes agreed that the inextricable link between the
illegality and the tort claim has not been satisfied.
Secondly, there is a need for an enquiry into the public policy basis of illegality to ascertain whether or not the reasons in favour
of denying the claim are sufficiently strong. According to Lord Wilson, the overarching value in this area of the common law is the
preservation of the integrity of the legal system, though this encompasses a range of more specific concerns: would allowing
her claim permit her to profit from her own wrong? Would it permit the evasion of a criminal penalty? Would it appear to condone
Ms Houngas illegality and encourage others like her to break the law? Conversely, would denying the claim encourage other
unscrupulous employers to employ and abuse migrants with irregular status through the promise of impunity? All of these reasons
gave little or no support to the denial of her claim on the grounds of illegality. Ms Hounga was not profiting from her own wrong; she
was not evading a criminal penalty; there was no evidence that others might be deterred by disallowing her claim (though it would
seem a rather unpalatable prospect for counsel in subsequent cases to argue that since unremedied racial harassment would deter
illegal migrants the claim should be barred); and it was not implausible that other employers might be attracted to employing illegal
migrants if it meant that they could be employed cheaply and without needing to worry about their employment rights.
Thus far, the speeches of Lord Wilson and Lord Hughes are substantially in alignment. The speeches diverge, however, on the
third point. Lord Wilson suggested that public policy might sometimes countervail against the denial of tort claims on the basis
of illegality. This is new and significant, for public policy has generally been regarded as a doctrine that defeats contract and tort
claims. In Hounga, Lord Wilson drew upon international human rights norms, as developed by the ILO and the European Court of
Human Rights, to conclude that Ms Hounga had been trafficked. Since it formed part of the public policy of the English common
law to afford protection to the victims of trafficking, permitting illegality to operate would be an affront to that public policy. Putting it
differently, we might say that the integrity of the English legal system would have been damaged if the trafficked victim in Hounga
had forfeited her human right not to be subjected to racial discrimination. Indeed, this is precisely what had happened in the Court
of Appeal decision itself.
It is tempting to react with frustration to Hounga. In tailoring its protection to trafficked migrants, it has regrettable exclusionary

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effects on non-trafficked but nevertheless vulnerable migrants. In countenancing the balancing of public policy reasons even
in human rights claims, it may be regarded as a betrayal of the universality of human rights norms in allowing illegality to figure
at all. The temptation should be resisted, however. The Supreme Court decision in Hounga is an example of the common law
working as well as can be expected of it, within the institutional constraints of incremental adjudication. The challenge for human
rights lawyers is to plot the next steps after Hounga. In particular, Lord Wilsons category of public policy operating against the
defeasibility of human rights claims by illegality is a Trojan Horse. It brings international human rights law into the very breast of the
English common law, and it is fraught with subversive potential. The next move is to consider which other aspects of international
human rights law might impede the operation of the illegality doctrine, especially where its effects on vulnerable workers are most
pernicious.
Alan Bogg, Professor of Labour Law at the University of Oxford. He is the co-author (with T Novitz) of Race discrimination and the
doctrine of illegality (2013) 129 LQR 12, cited at [35] of Lord Wilsons reasons in Hounga v Allen.

What Traffickers Know that the Court of Appeal Does Not


By Catherine Briddick | 11th February 2015

In Reyes and Suryadi v Al-Malki [2015] EWCA Civ 32 and Benkharbouche and Janah v Embassy of the Republic of Sudan and
Libya [2015] EWCA Civ 33 the Court of Appeal considered two cases involving domestic work and immunity, a consideration of
which reveals the discriminatory and gendered premises on which the law continues to operate.

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Ms Benkharbouche, who was employed as a cook in the Sudanese embassy, brought claims in the Employment Tribunal for
unfair dismissal, failure to pay the minimum wage and breach of the Working Time Regulations 1998. Ms Janah, whose duties
included cooking, cleaning and shopping, brought claims against the Libyan Embassy for unfair dismissal, arrears of pay, racial
discrimination, harassment and breach of the Working Time Regulations 1998. In both cases the respondent sought to resist
proceedings by asserting state immunity under the State Immunity Act 1978 (SIA). The issue for consideration was whether or not
state immunity under the SIA was compatible with the applicants rights under Article 6 of the European Convention Human Rights
(ECHR) and Article 47 of the EU Charter. The immunity protected by the SIA is derived from the principle in international law that
one state cannot sit in judgement on another. However, as paragraph 21 of the judgement states, the scope of immunities required
by international law are the subject of great uncertainty and the right is violated if a state adopts a rule restricting access to the
courts which international law does not require. The Court of Appeal concluded that the SIA did go beyond what was required; it
therefore issued a declaration of incompatibility under the Human Rights Act 1998 and disapplied sections of the SIA relevant to the
claims based in EU law to enable those actions to proceed.
In contrast the Court, which heard both cases together, held that diplomatic immunity could successfully prevent Ms Reyes and Ms
Suryadi from pursuing claims for racial discrimination, harassment and failure to pay the minimum wage following their trafficking
by the Al-Malkis into the UK for domestic servitude. The Vienna Convention on Diplomatic Relations 1961 confers on diplomats
complete immunity from civil actions except in cases that concern commercial activity carried out outside of the diplomats official
functions (Art 31(1)(c)). In a frankly breath-taking conclusion the Court of Appeal stated that although the denial of legal remedies
to the trafficked women which resulted from their decision may appear unfair, any apparent inequity reflected a policy decision
already made which privileged diplomatic relations over individual rights (paragraph 77).
The debate in Reyes is constructed by the Master of Rolls, Lord Dyson (with whom Lady Justice Arden and Lord Justice Lloyd
Jones agreed), to be primarily concerned with whether or not the positive obligations on states in relation to trafficking trump the
law on diplomatic immunity. After consideration he rightly concludes that they do not. The issue that is elided, and which is so
significant, is the much narrower question of whether or not someone who traffics women to work in his household is engaged in a
commercial activity that is not protected by diplomatic immunity. Whilst accepting KALAYAANs evidence that considerable sums of
money are made in trafficking operations, Lord Dyson nevertheless concludes that the question is answered by looking at what that
the employee does, rather than at her remuneration or the circumstances which resulted in her employment (paragraph 34).
The provision of services that are important for the proper running of an embassy cannot be judged incidental when carried out
in a home. The salient feature for Lord Dyson, what the employee actually does, is not changed by where she does it. The failure
of the Court of Appeal to recognise what traffickers know to be the case, that womens domestic work has considerable value,
commercial and otherwise, is a result of patriarchal attitudes which essentialise and devalue womens skills and experiences and
which seek to keep issues that are the legitimate concern of human rights law outside its purview by relegating them to the private,
domestic sphere. The effect of this judgement for domestic workers, who are subject to gendered immigration rules which prevent
them from changing employers, is to facilitate and compound their exploitation and abuse.
Catherine Briddick is a DPhil Candidate in Law at St Peters, University of Oxford, a teaching assistant at the Refugee Studies
Centre and Chair of Asylum Aid.

The Business of Traffic in Humans


By Marija Jovanovic | 4th May 2014

Human trafficking is a complex phenomenon touching upon different legal and policy frameworks. Being first and foremost a very
serious crime, its relationship with human rights law is not as straightforward as many are quick to imply. Bringing it within the ambit
of traditional human rights law, and invoking the responsibility of a State for the harm inflicted upon victims, requires engaging with
the concept of positive duties. It creates a triangular relationship between a trafficker, his victim, and a State: the extent of States
positive obligations is far from clear-cut.
Importantly, human trafficking is also a business venture. By treating human beings as commodities, it generates enormous profit,
with limited or no risks. Its estimated turnover is said to be more than US$32 billion a year. However, unlike other profit-driven
criminal enterprises that operate exclusively within illegal markets, human exploitation usually takes place in legitimate markets
such as agriculture, construction, or domestic service. Therefore, it is not easy to determine what role, if any, businesses have in
the fight againstthis global scourge, and whether human rights law bears any relevance in that context. Do business enterprises
have self-standing obligations arising out of human rights law? This inevitably raises a question of human rights obligations of
non-State actors (the horizontal application of human rights law). Does a growing shift in power from the once dominant State
to corporations justify a fundamental shift in responsibility for protecting human rights effectively privatizing the enforcement of
human rights laws?
The 2011 UNGDP deals with this business-human rights nexus. The Principles are structured around three pillars: the State duty

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to protect human rights; the corporate responsibility to respect human rights; and access to remedy. The second pillar appears to
establish a self-standing responsibility of business enterprises to respect human rights, including their duty to act with due diligence
to avoid infringing the rights of others, and to address adverse impacts of their activities. This seems a welcome, if controversial,
hypothesis, given the nature and the status of the Principles. It is clear that they should not be read as creating new international
law obligations. The responsibility of business enterprises to respect human rights is said to be distinct from issues of legal
liability and enforcement. Therefore, it seems premature to claim that human rights law is going through a major conceptual
transformation, treating businesses as duty-bearers in their own right. In that context the following statement from the recent UK
national action plan for the implementation of the UNGDP sounds overly ambitious: At a time when some companies have bigger
turnover than some countries GDP () we need all companies from the biggest to the smallest to embrace their responsibilities
towards society, including respecting human rights.
At national level, the UK Government sought to position Britain as a world leader in the fight against modern slavery by introducing
a Modern Slavery Bill. However, whilst the Report of the Modern Slavery Bill Evidence Review acknowledged a crucial role for
business, the Draft Modern Slavery Bill published last December disappointingly commits only to continue to work with business on
a voluntary basis. Following pre-legislative scrutiny of the Draft Bill, the Joint Committee published a Report offering an amended
Bill seeking to correct perceived shortcomings of the Governments draft. Nevertheless, it merely requires relevant companies to
include modern slavery in their annual strategic reports. Arguably, the desire not to create unduly burdensome requirements for
businesses seems to have prevented introducing legislation with more teeth.
Developments across the Atlantic seem more promising. The 2010 California Transparency in Supply Chains Act the first of
its kind requires retailers and manufacturers doing business in California, with annual revenues of over US $100 million, to
disclose information about their efforts to eradicate slavery and human trafficking from their direct supply chains. Also, several
recent initiatives at Federal level have tightened anti-trafficking laws directed at businesses, helping those that contract with the US
government to enforce existing anti-trafficking policy and to clarify steps that federal contractors must take to fully comply with antitrafficking measures. These initiatives, however, are far from comprehensive, and, it is debatable whether they stem from genuine
human rights considerations, or rather concerns with maintaining a good image and business reputation.
Evidently, the nature and scope of obligations placed on business still depend solely on national legislation. These duties are mainly
voluntary, lacking any structured enforcement mechanism or a clear idea of their conceptual and normative grounding.
Marija Jovanovic is a DPhil student at the Faculty of Law, University of Oxford.

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Judicial Review of Migrant Detention in Europe: In Search of Effectiveness and Speediness


By Nikolaos Sitaropoulos | 27th January 2014

Detention has been highlighted in recent years by a number of international and non-governmental organisations as an ineffective
and inefficient tool of migration control employed by a large number of states. In 2013, the European Court of Human Rights
continued to find violations of Article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR) by various state parties and even rendered a quasi-pilot judgment in the case of Suso Musa v. Malta [2013] ECHR 721.
The grounds of these violations related to the lack of an effective judicial review mechanism, and, in the majority of the cases,
to national procedures that did not respect the speediness requirement of Article 5(4) ECHR. The possibility of detention for a
maximum period of 18 months in EU member states, established by Article 15 of the Return Directive in 2008, has rendered even
more evident the need for an effective, speedy judicial review in immigration and asylum cases.
Article 5(4) ECHR entitles a detainee to institute proceedings challenging the procedural and substantive conditions upon which his
deprivation of liberty is based. The general principles applied by the Court in this regard are set out in M.A. v. Cyprus [2013] ECHR
717, as follows:

Article 5(4) does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case
including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review
should, however, be wide enough to bear on those conditions which are essential for lawful detention.
The remedies must be made available during a persons detention with a view to that person obtaining speedy judicial review
of the lawfulness of his detention capable of leading, where appropriate, to his release. The accessibility of a remedy implies,
inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility
of using the remedy.
The existence of the remedy required by Article 5(4) must be sufficiently certain, not only in theory, but also in practice.
The requirement of procedural fairness under Article 5(4) does not impose a uniform, unvarying standard to be applied
irrespective of the context, facts and circumstances.
Under Article 5(4), all detainees also have a right, following the institution of such proceedings, to a speedy judicial decision
concerning the lawfulness of their detention and to its termination if it proves unlawful. In this context, the Court has laid down
strict standards. For example, in the cases of Sarban v. Moldova No. 3456/05, Kadem v. Malta[2003] ECHR 19 and Rehbock
v. Slovenia [2000] ECHR 636, the Court concluded that time periods of twenty-one, seventeen and twenty-three days,
respectively, were excessive.
Although Article 5(4) does not require the existence of bi-level judicial review, in cases where it exists, both levels should meet
the speediness requirement (Djalti v. Bulgaria No. 31206/05, para. 64).

Of importance in this context is legal aid. Although the ECHR does not require provision of free legal aid in the context of detention
proceedings, if legal representation is required under domestic law, the non-existence of legal aid raises issues of compatibility with
Article 5(4) (Suso Musa v. Malta, para. 61). In the case of Suso Musa, the Strasbourg Court took an exceptional step and adopted
a quasi-pilot judgment, indicating to Malta (in the non-operative part of the judgment (para. 119 et seq.)) the necessity of general
measures at the national level establishing, inter alia, a judicial- character mechanism providing for speedy and fair judicial review
of migrant detention. What actually prompted the Court to act in this manner was its conclusion that the problems detected in the
case could give rise to numerous other well-founded applications that would excessively burden the Courts docket. The Court
had already found a similar violation by Malta in 2010, in another case concerning migrant detention, Louled Massoud v Malta No.
24340/08.
The above guidelines provided by the Strasbourg Courts case law are significant, especially in a period when deprivation of
migrants, including asylum seekers, liberty upon arrival or in view of forced return from Europe has been trivialised.
Nikolaos Sitaropoulos is the Head of Division and Deputy to the Director at the Office of the Council of Europe Commissioner for
Human Rights.

Europol and the Fight Against Human Trafficking


By Owain Johnstone | 29th July 2014

On Tuesday 24th June 2014 the Human Trafficking Discussion Group (under the umbrella of the Oxford Migration Studies Society)
was delighted to host a talk by Sergio DOrsi of Europol, speaking about that organisations important work on human trafficking.
Sergio spoke engagingly about both Europols general institutional role and capacities and its specific focus on human trafficking
within the organisations broader mandate.

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If you are not familiar with Europols work, it can best be described as a coordination and liaison mechanism for European police
forces and also a mechanism for liaising with non-European forces when necessary. While Europol itself does not possess any
executive powers, it can help to support and coordinate policing activity by Member States whenever this involves cross-border
crime of some kind. As such, Europol is a key body when it comes to creating a coordinated and effective European policing
response to cross-border threats. It offers a means of communication between different countries operatives as well as a large
intelligence database.

A large part of Europols mandate focuses on organised crime, within which is situated its human trafficking team, of which Sergio
is a part. That team has an important role to play given the increasingly prevalent problem of human trafficking in Europe. They
are also a source of expertise on trafficking, able as they are to draw on and collate experience and intelligence from across
Europe and elsewhere. Sergio noted a number of contemporary trends in trafficking drawn from this knowledge, including an
increase in levels of intra-European human trafficking, the growing flexibility of organised criminal groups to react to novel laws and
enforcement mechanisms, and an increased demand for illegal labour following the economic crisis. In other words, trafficking is a
growing problem in Europe as much as anywhere.
One of the aspects of Sergios talk that particularly stood out was his emphasis on the variability of human trafficking. Criminal
groups can be small or large, routes are rarely constant (in contrast to people smuggling) and business models can be
sophisticated and rapidly changing the internet has become a particularly significant influence on trafficking activity, permitting
traffickers to advertise, communicate, transfer money and take bookings for anything from escort services to prostitution, and all
with relative anonymity.
Yet despite this flexibility and variability, Sergio also emphasised the need to remember that traffickers and their victims are often of
the same nationality and even come from the same local communities. One implication of this is that victims might find themselves
abroad (in the UK, for example), where the only people who speak their language are their traffickers. A related finding is that
organised criminal groups engaged in trafficking often have close links with immigrant communities in destination countries.
The overall impression that Sergio left us with was of human trafficking as a business and like many businesses it is made up of a
wide variety of actors and often linked to local contexts. He also noted the consequent importance of the bottom line, meaning that
from an enforcement perspective it becomes even more important to address the financial aspects of trafficking.
Human trafficking, then, is a complex, multifaceted and rapidly evolving phenomenon, which makes the role of a coordinating and
intelligence sharing body like Europol particularly crucial. If we are to tackle trafficking we must get to grips with its complexity and
recognise that no country is able to address the issue alone.
Owain Johnstone is a DPhil Candidate at the Centre for Socio-Legal Studies, Oxford University.

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High Time for Europe to Offer Temporary Protection to Refugees from Syria?
By Cynthia Orchard and Dawn Chatty | 27th October 2014

Approximately 3 million people have fled Syria due to the armed conflict. About 96% of the refugees remain in Lebanon, Turkey,
Jordan, Iraq, and Egypt. By July 2014, the number of Syrian asylum applicants in Europe reached 123,600, about 4% of the total.
With such high numbers of displaced persons so close to European borders, and with large numbers of Syrian refugees in Europe,
the activation of a coordinated temporary protection regime in Europe is overdue. The recent deaths of hundreds of migrants in the
Mediterranean Sea, some of them Syrian refugees, illustrate the urgency of expanding safe, legal routes into Europe for refugees.

Following the uncoordinated response to the refugee crisis generated by conflict in the former Yugoslavia in the 1990s, in 2001,
the European Council issued a Temporary Protection Directive (2001/55/EC). It provides a framework and minimum standards
for responses to the mass displacement of persons unable to return to their country of origin (for example, due to armed conflict).
Under Article 2(d), the Directive can apply to a spontaneous movement or an assisted evacuation into Europe of a large number of
people from a particular country or region; and under Article 8(3), States should facilitate the entry of eligible persons, including by
the issuance of visas.
The Directive has never been activated but could be part of a reasonable response to the Syrian refugee crisis. It would work
something like this: the European Council would designate the group for whom temporary protection is required (in this case,
people who have fled Syria due to the armed conflict). Then participating states would facilitate the entry and temporary protection
of people from the designated group; and the designation also would apply to members of the group who entered Europe
independently. People who have committed serious crimes would be excluded from protection. Beneficiaries would be granted
temporary protection for one year (renewable if the circumstances in Syria had not substantially improved). The group designation
could be withdrawn when the circumstances in Syria permitted displaced persons to return home safely or on the European
Councils decision.
This temporary protection regime would be similar in some ways to existing refugee resettlement and humanitarian admission
programmes, but offers several advantages. Temporary protection does not require a status determination procedure (other than
to establish membership in the designated group), as is normally necessary for refugee status, which would reduce the time
and resources needed to process beneficiaries. In addition, the programme would be coordinated across Europe, promoting
responsibility-sharing amongst European countries. Finally, the programme would offer protection to significantly more people.
Temporary protection should not take the place of asylum. As confirmed in the Directive (Paragraph (10) and Articles 4 and 19),

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persons granted temporary protection should be eligible for refugee status if they meet the criteria under applicable law (though
States could oblige beneficiaries to wait until the end of their temporary protection before applying for asylum). Permanent asylum
is necessary for some who would be persecuted in their country of origin even if a sustainable peace were achieved and many
people who previously required international protection could return home in safety. Permanent asylum also is necessary for some
victims of severe trauma who are receiving treatment in their new country. It is likely, however, that many Syrians will be able to
return to their homeland once the conflict ends and the country stabilises.
Temporary protection should not be the only way for Syrians to enter Europe legally and safely. It should be implemented
simultaneously with other measures, including permanent resettlement, humanitarian admission, family reunification, private
sponsorships, student scholarships, academic fellowships, and employment and training programmes.
Although not a panacea, temporary protection could be a very important part of Europes response to the Syrian refugee crisis. The
situation in the countries neighbouring Syria is so dire that many refugees are willing to risk their lives to seek refuge in Europe.
European leaders should not wait for more tragedies to occur before significantly expanding safe, legal ways for Syrian refugees to
enter Europe.
Cynthia Orchard is a US-qualified attorney currently working as a consultant researcher and editor with BADIL (the Resource
Center for Palestinian Residency and Refugee Rights). She done legal advocacy for refugees in the UK and US and recently
completed a Masters in international human rights law at the University of Oxford.
Dawn Chatty is Professor of Anthropology and Forced Migration at the University of Oxford, and former Director of the Refugee
Studies Centre in the Department of International Development.

Migrant Push Backs at Sea are Prohibited Collective Expulsions


By Nikolaos Sitaropoulos | 8th February 2014

In the early hours of 20 January 2014, a boat coming from Turkey carrying twenty-seven Afghan and Syrian migrants was
intercepted by the Greek coast guard near the isle of Farmakonisi, in the southeast Aegean Sea, and later capsized. Eight migrant
children and three migrant women drowned. While this operation was described by the Greek authorities as a rescue, the migrant
survivors adamantly alleged that it was, in fact, a push back. Push back is a widely-used term that has overshadowed the legal
term, collective expulsion, the prohibition of which was expressly provided for in 1963 in the one-sentence, oft-forgotten, Article 4
of Protocol No. 4 (Article 4-4) to the European Convention on Human Rights (ECHR).
In the case of Becker v. Denmark [1962] ECHR 1, the former European Commission of Human Rights defined collective expulsion
as any measure compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of
a reasonable and objective examination of the particular cases of each individual alien of the group. The purpose of Article 4-4 is to
enable migrants to contest the expulsion measure, thereby guarding against state arbitrariness and safeguarding fairness in forced
return procedures.
Under the Strasbourg Courts established case law, the fact that members of a group of migrants are subject to similar, individual
expulsion decisions does not automatically mean that there has been a collective expulsion, insofar as each migrant is given the
opportunity to argue against this measure to the competent authorities on an individual basis.
Moreover, there is no violation of Article 4-4 if the lack of an expulsion decision made on an individual basis is the consequence
of applicants own culpable conduct. For example, in Berisha and Haljiti v.the former Yugoslav Republic of Macedonia, No.
18670/03 the applicants had pursued a joint asylum procedure and thus received a single common decision. Another example
is the case of Dritsas v. Italy No. 2344/02, in which the applicants had refused to show their identity papers to the police and as a
result, the latter had been unable to issue expulsion orders to the applicants on an individual basis.
The locus classicus case involving interception at sea is Hirsi Jamaa and others v. Italy No. 27765/09. This case concerned the
2009 interception and forced return to Libya of a large group of African migrants by Italian navy ships in the Mediterranean, based
upon relevant bilateral agreements between Italy and Libya. The Court in this case noted that Article 4-4 is applicable not only to
migrants lawfully within a states territory but also to all foreign nationals and stateless individuals who pass through a country or
reside in it. The Court found Italy to be in violation of the above provision on the grounds that the migrants transfer to Libya was
carried out without any examination of their individual situations, there was no identification procedure conducted by the Italian
authorities, and the staff aboard the transporting ships were not trained to conduct individual interviews and were not assisted by
interpreters or legal advisers.
State responsibility in this context also arises under Article 2 ECHR (right to life), as demonstrated in another, earlier Strasbourg
Court case, Xhavara and fifteen others v. Italy and Albania No. 39473/98. This case concerned the interception in 1997 of a group

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of Albanian irregular migrants in the Mediterranean by an Italian navy ship. Fifty-eight migrants drowned as a result. The Court held
that, given that the fatal accident was caused by an Italian navy ship, the Italian authorities were under an obligation, pursuant to
Article 2 ECHR, to carry out an investigation that was official, effective, independent and public. On this point, the Court concluded
that the criminal investigation initiated by the Italian authorities had provided adequate safeguards with respect to the effectiveness
and independence requirements.
The tragic migrant interception operation in the Aegean Sea last January is part of the long list of tragedies in the Mediterranean
and a consequence of long-standing European migration policies and practices that make migrants lawful entry into Europe
overly difficult. Although European states have no legal obligation to change their policies, they are nonetheless under a clear
legal obligation to provide adequate redress to migrants who have undergone such painful odysseys due to push back or rescue
attempts.
Nikolaos Sitaropoulos is the Head of Division and Deputy to the Director at the Office of the Council of Europe Commissioner for
Human Rights.

United Nations Human Rights Council: Commission of Inquiry into Human Rights Abuses
in the Democratic Peoples Republic of Korea
By James Lewis | 3rd April 2014

On 26 March 2014 the United Nations Human Rights Council (HRC) passed a Resolution condemning in the strongest terms
the continuing violation of human rights and calling for the referral of a wide catalogue of human rights abuses by the Democratic
Republic of Korea (DPRK) to the International Criminal Court (ICC) for investigation (Resolution). The Resolution follows
an extraordinarily comprehensive report published by the Commission for Inquiry on Human Rights Abuses in the DPRK
(Commission) which included extensive witness testimony on the systematic abuse of women and children.

The Commission was established on 21 March 2013 by the HRC to investigate human rights violations in the DPRK and reach
a recommendation on whether the situation in the DPRK should be submitted to the ICC for investigation on charges of crimes
against humanity.
An unprecedented amount of evidence was compiled over a year-long investigation, involving over 80 witnesses providing
testimony during public hearings held in London, Washington D.C., Seoul, and Tokyo. This led to the Commissions formal
conclusion (delivered on 17 March 2014) that it had found systematic, widespread and grave human rights violations occurring in
the DPRK on a scale that reveals a totalitarian state that does not have any parallel in the contemporary world.

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Of particular importance is the Commissions Report of 7 February 2014 (Report), containing a comprehensive documentation of
the DPRKs human rights abuses using an unparalleled volume of new witness testimony. This new testimony covers not only the
DPRKs well-documented abuses including arbitrary detention and execution, forced labour, and political oppression, but also in
particular, the DPRKs systematic abuse of women and children.
The Report details, using primary accounts from both victims and humanitarian workers, the widespread trafficking of women for
prostitution, forced marriages, and forced concubinage in the Peoples Republic of China (PRC). Women are targeted by brokers,
who offer them food or employment, then smuggle them across the PRC border for sale. Several women testified that victims are
sometimes unaware that they will be leaving the DPRK. Brokers offer them false promises of employment elsewhere within the
DPRK, but instead traffic them into the PRC. One victim stated that she was sold in 2003 by traffickers for 8,000 won (US$ 7.50).
A woman is typically sold at least twice before she is finally sold into the sex industry or to a man for marriage. Trafficked women
are not registered in the PRC and neither are the marriages nor any children born. This is because registration and documentation
would risk exposing the women to the PRC authorities who routinely forcibly repatriate them to the DPRK. Thus, although the
children born to Chinese fathers could claim nationality and State education under PRC law, they are often unable to enjoy any
benefits as their registration would risk exposing their mothers. As a result of being undocumented, trafficked women routinely face
rape, violence, and death at the hands of their husbands, pimps, or others who exploit their status.
Pregnant woman repatriated back to the DPRK face forced abortions as required by a DPRK eugenic policy of genetic purity.
These brutal abortions are carried out in holding or detention and interrogation centres. Descriptions include repeated physical
trauma to induce miscarriages, insertion of chemicals or drugs into the bloodstream, or forcible extraction of the foetus. No medical
assistance is provided to any of the victims who almost inevitably experience permanent organ damage or death from blood loss or
infection. It is also common practice for prison guards to drown or suffocate infants born inside prisons or force the mothers to kill
their own infants.
These testimonies are only examples of the brutal abuses committed particularly against women and infants detailed in the Report.
Given the compelling evidence of the widespread and categorical abuse of human rights in the DPRK, it is unsurprising that the
HRC passed its recent Resolution on such strong terms. The Resolution was adopted by a vote of 30 to 6, with 11 abstentions.
However, as the referral to the ICC will need to come from the Security Council, such a referral will likely be blocked by Russia and
China who both voted against the Resolution.
James Lewis is a solicitor at Pinsent Masons and holds both a LLB and MSc from Kings College London.

Navigating the Turkish Legal Regime: Syrian Refugees in Istanbul


By Stanislava Topouzova | 3rd May 2014

Between March 21st and March 28th, a group of Oxford MSc students from the Department of International Development travelled
to Istanbul to conduct fieldwork for a variety of migration-related questions. They met with advisors, specialists, and representatives
from the International Organization for Migration (IOM), the Helsinki Citizens Assembly (HCA), the Ministry of Interior, and the
Tarlabasi Community Centre among others. This article was informed by those meetings.
Since March 2011, according to the United Nations High Commissioner for Refugees (UNHCR), over one million Syrians have
arrived in Turkey due to the ongoing conflict in Syria. The Turkish Prime Ministry Disaster and Emergency Management Presidency
reported that over 900 000 Syrians have arrived in Turkey since the conflict began.
Many Syrians who enter Turkey at the southern border are housed, often temporarily, in one of 21 UNHCR camps that have been
established at the border. From this point of entry, many Syrians embark on yet another journey: one through the Turkish legal
system in search for official temporary protection status, modelled after the European Union Directive on Temporary Protection.
The primary law concerning refugees in Turkey, the Law on Foreigners and International Protection (No. 6458, 04/04/2013),
defines a refugee as: a person who as a result of events occurring in European countries and owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the
country of his or her nationality. In effect, this law maintains the geographical boundaries outlined in the Geneva Convention
on the Status of Refugees and indicates that the Turkish government grants refugee status and protections only to persons from
Europe fleeing persecution.
According to this law, any other individual who enters Turkey due to a well-founded fear of persecution can be granted a
conditional refugee status after a determination procedure and an evaluation of their application. Ordinarily, applications are
evaluated by UNHCR staff at one of many evaluations centres across the country. After completing interviews and evaluations,
UNHCR staff determine if a case for asylum is genuine and whether the applicant qualifies for resettlement in a third country,

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typically Canada, the United States, Australia, or countries in Europe.


The resettlement process is protracted and arduous, as the law permits the Directorate General to oblige conditional refugees to
reside, and register, in a particular province or city anywhere in the country while waiting for third-country resettlement. Thus, many
conditional refugees awaiting third-country resettlement are scattered in villages and towns across the country while waiting to be
resettled.
When the application of a conditional refugee is accepted by a third-country government and has successfully cleared all security
checks, the International Organization for Migration (IOM) in Turkey acts as one of the primary vehicles for facilitating the
resettlement process. The organization is specifically charged with the task of assisting refugees with the transition into the country
of settlement. Refugees have to complete cultural adaptation programs and basic language training as preparation for entry into
the country of resettlement.
Yet, for the majority of Syrians in Turkey, third-country resettlement is not an option under the temporary protections policy. Most
Syrians in Turkey continue to live outside of the formally-established UNHCR camps and to wait in local towns, villages, and cities.
As the Turkish government continues to amend its operational framework and approach to the evolving situation with its Syrian
border, the Parliament has promulgated, in the 2013 Law on Foreigners and International Protection, a set of more robust support
provisions for asylum-seekers in Turkey. Likewise, the Turkish Government has established a new civil society-based Directorate
General for Migration Management to eventually take over most refugee coordination operations from the UNHCR.
Despite these developments in emergency planning and legislation, many challenges remain for Syrian refugees in Turkey.
Ultimately, these challenges are not limited to legalities and logistics. Each new statistical figure and newly-elaborated legal
measure serves as a signpost of the deeper challenges that Syrian refuges face in Turkey: challenges about being and belonging,
finding a community and stability, and ultimately rebuilding.
Stanislava (Stacy) Topouzova is presently completing her MSc at the Department of International Development at the University of
Oxford, working on a legal ethnography of labour restrictions against Bulgarians and Romanians in the U.K. She will resume DPhil
studies at the University of Oxford in 2014.

Palestinian Refugees in Syria: A Primer For Advocacy


By Nanjala Nyabola | 25th January 2014

In the face of crisis, it is very easy for those of us in neither government nor humanitarian work to switch off the news. Certainly, this
seems to be the case with Syria, where the ongoing civil war has set off one of the largest humanitarian crises in recent history.
To date, over 2 million Syrian refugees have fled into neighbouring countries. Millions more internally displaced persons within the

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country remain unaccounted for. And the nearly half a million Palestinian refugees that had sought protection in Syria prior to the
war exist in a violent and increasingly detrimental legal limbo.
The situation in the Yarmouk refugee camp, an informal camp in the outskirts of Damascus hosting the largest population of
Palestinian refugees in Syria, is a painful example of what happens when specialised protections for protected groups are
subsumed within a larger narrative. In 2012 there were over 148,000 Palestinian refugees registered with UNRWA residing in
Yarmouk. These communities relied on humanitarian groups to supplement basic services provided by the government. Although
thousands have fled, many remain owing to fighting between the government and combatant groups sheltering in the camp; itself a
violation of humanitarian law.
Currently, Yarmouk camp is under siege, and food and medical aid is unable to get through. Last week, Al Jazeera broadcasted
a distressing report of refugees eating animal feed and mothers dying in labour owing to malnutrition. The president of the
International Committee of the Red Cross was also recently in Syria to urge the Syrian government to grant humanitarian actors
access.
Humanitarian law provides strong protections for Palestinian refugees that must be enforced, and advocacy is needed to push
for that, particularly as political leaders from both sides meet in Geneva later this month for peace talks. Syria is a party to the
four main Geneva Conventions, and they are at the very minimum bound by Common Article 3 of the Conventions to protect the
humanitarian rights of civilians and non-combatants in non-international conflicts. This article creates an active duty to treat those
not directly involved in the conflict humanely and non-discriminatorily, and urges parties to the conflict to allow the ICRC or another
impartial humanitarian body access to civilians to provide key medical and other services.
These requirements must also be read in light of a subsequent provision in Article 3 that urges parties to the conflict to give effect
to other provisions of the Geneva Conventions, e.g. those that protect civilians from inhumane and degrading treatment. Permitting
humanitarian agencies access to Palestinian refugees in Yarmouk is the only way parties to the Syrian conflict can faithfully satisfy
their obligations under the Geneva Convention.
Further, the Yarmouk situation is in violation of fundamental guarantees of human rights law, and refugee law as lex specialis for
refuges as protected persons. Significantly, the de facto embargo in Yarmouk is a violation of refugees right to movement (ICCPR
Article 12: Refugee Convention Article 28) and undermines Syrias commitment to cooperate with UNRWA to protect Palestinian
refugees.
Recall that there is practically nowhere for Palestinian refugees to return to. Return to Israel or Palestine would be inconsistent with
the refugee law requirement not to return individuals to places where they face a risk of persecution. Many Palestinian refugees
are currently in Jordan, Lebanon, Iraq and Turkey, but the demographic and economic pressures on these countries are immense.
Burden sharing by third countries is therefore necessary by offering third-country resettlement for Palestinian refugees or by
significantly increasing financial support to surrounding countries hosting refugees.
With this baseline knowledge, any individual should be able to advocate for the protection of Palestinian refugees in or from Syria.
Various methods of doing so are possible, such as calling on national governments to urge continued financial support for the
ICRC, UNRWA, UNICEF, the Syrian Red Crescent and other organisations on the ground in Syria. An increased awareness of the
situation facing refugees in Syria, particularly Palestinian refugees whose situation grows more precarious, will ensure that their
plight is not ignored.
Nanjala Nyabola is a political analyst and writer currently based at Harvard Law School.

Implementation of Tripartite Agreement on Hold


By Brid Ni Ghrainne | 1st June 2014

As host to the largest Somali refugee population in the world, it is little wonder that Kenyas shoulders have grown weary of carrying
a burden which, in terms of numbers, falls just short of the half million mark.
Little wonder too is the desire of many Somali refugees to return to their country of origin. Many have spent over 20 years in
Kenyan refugee camps after the collapse of the Somali government in 1991. Indeed, amidst reports circulating that between
30,000-80,000 refugees had returned voluntarily to Somalia in 2013, the time was ripe in November of last year to conclude an
agreement to facilitate further returns. However, the implementation of this agreement reached a sudden halt in the last few days
following the 27 May boycotting by the Somali Government of tripartite talks with Kenya and the United Nations High Commissioner
for Refugees (UNHCR).
The Tripartite Agreement between the Government of the Republic of Kenya, the Government of the Federal Republic of Somalia,

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and the United Nations High Commissioner for Refugees Governing the Voluntary Repatriation of Somali Refugees Living in
Kenya, 2013 was signed in 10 November 2013 and was welcomed by NGOs, UNHCR, and various stakeholders as representing
an important step in the development of durable solutions for Somali refugees. The Tripartite Agreement has been carefully drafted
so that the option of returning refugees to Somalia is not treated as an alternative to asylum. Return can only be carried out in
specific circumstances, as it does not entail the cessation of refugee status and therefore there still exists insufficient protection
from persecution in the country of origin.
Thus the principle of voluntary return and the right to return in safety and dignity form the backbone of the Tripartite Agreement. The
Preamble of the Agreement also reaffirms the prohibition of refoulement, which protects refugees from being sent to places where
their lives or freedoms are in danger. Kenya and Somalia are bound by this principle as States Parties to the 1951 Convention
Relating to the Status of Refugees and Kenya is a State Party to the 1969 OAU Convention Governing the Specific Aspects of
Refugee Problems in Africa, which also prohibits refoulement.
Voluntary repatriation has not, however, been the practice of Kenya in the aftermath of the conclusion of the Tripartite Agreement.
In April 2014, Kenya launched a massive security crackdown on Somali refugees following terrorist attacks in several areas,
culminating in the forced deportation of 359 refugees. As various NGOs have informed us, the current situation in Somalia is not
conducive to the mass return of refugees and only a few parts of Somalia are safe for return. Unsurprisingly, therefore, both
Amnesty International and the UNHCR have condemned these acts as a breach of international law. The Somali government has
responded by refusing to attend a meeting concerning the Tripartite Agreement, which was due to take place on 27 May. According
to the Somali government:
As we are concerned about the plight of Somali refugees and the unlawful activities committed by the Kenyan security forces
against the refugees of Somalia in Kenya, we cannot attend such meeting.
The launch of a 12-member Tripartite Commission to oversee the gradual and voluntary repatriation process has now been
suspended. It remains to be seen how the acts of the Kenyan and Somali authorities will impact the future of the Tripartite
Agreement before its implementation has even begun. It is also worrying that the Tripartite Agreement can be terminated by either
party at six months notice, and that at the time of writing, the parties to the Agreement have not engaged in dialogue to overcome
this first but highly significant obstacle to implementation.
Brd N Ghrinne is completing a DPhil at the Law Faculty, University of Oxford. She holds an LLM in Public International Law from
Universiteit Leiden, the Netherlands, and a BCL (International) from the National University of Ireland, Galway.

Angel: Afro-Honduran Migrant Tortured and Imprisoned in Mexico


By Denise Gonzalez | 13th August 2014

Imagine that you are a father of two in Honduras and are in desperate need of a job allowing you to pay for medical treatment
for your seven-year-old son, who has been diagnosed with cancer. In your home country, you are unable to find meaningful
employment opportunities, so your only hope of saving your sons life entails risking your own by crossing Guatemala and then
Mexico as an undocumented migrant with the hope of reaching the United States of America.
But instead of crossing the US border, you are betrayed by a human smuggler and arbitrarily detained by police, even though you
have committed no crime. You end up in a high-security prison, falsely accused of organized crime and other drug-related crimes
for which you could be sentenced to up to 60 years of prison time. Meanwhile, the son whose life you hoped to save dies while you
are in prison. That is the story of Angel Amilcar, an Afro-Honduran migrant and highly-recognized human rights defender who, after
a 2-month journey across Guatemala and Mexico in 2009, was arbitrarily detained in the northern Mexican border city of Tijuana,
state of Baja California, and still awaits the end of his trial.
Mexico is a country of transit for thousands of undocumented migrants who travel to the United States in search of job opportunities
and, ultimately, to increase the odds of survival for their families. However, each migrants prospects of reaching Mexicos northern
border are bleak, as Mexico constitutes a virtual graveyard for migrants and their dreams of a better life. In December 2010, Mexico
City-based NGO Miguel Agustin Pro Juarez Human Rights Centre (Centre Prodh) and the Washington Office on Latin America
(WOLA) published a report entitled A Dangerous Journey through Mexico: Human Rights Violations against Migrants in Transit,
which analysed how tens of thousands of migrants are systematically extorted, sexually abused, and/or kidnapped while they
travel through Mexico. Amnesty International also documented this humanitarian tragedy through its 2010 report Invisible Victims:
Migrants on the Move in Mexico. The chapter on Mexico in Human Rights Watchs annual World Report has consistently included
a section denouncing the grave abuses committed against migrants.
Angels case shows that in Mexico, migrants are potential victims of all kinds of human rights violations, including false incrimination

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and unfair imprisonment. According to a report to be published in the coming weeks by Centre Prodh, between May and October
2013 there were 1,219 Central Americans imprisoned in Mexican jails who almost certainly remain in prison to date accused of
supposed crimes including homicide, theft, organized crime, illegal possession of weapons, and drug-related crimes. These cases
raise serious concerns in light of both Angels case and the systematic abuses against migrants in Mexico, coupled with the wellknown structural deficiencies of the Mexican justice system, historically characterized by a presumption of guilt that leads to the
imprisonment of countless innocent people.
Angel was detained during a police raid on a house to which he had been brought under threat by the human smuggler who
falsely promised to help him cross the border. But instead of being treated as a victim, Angel was arrested, insulted and seriously
discriminated against on the grounds of his ethnicity, tortured by the police and the military, forced to sign a false statement,
exhibited before the media as a criminal, and prosecuted for crimes he did not commit. After documenting the case and concluding
that Angel was accused and imprisoned as a result of discrimination due to his ethnicity, Amnesty International named him a
Prisoner of Conscience on July 22, 2014.
In the coming weeks, a federal court will issue a judgment on Angels case. However, before that happens, the federal prosecutor
will have one last opportunity to drop the charges. Now, more than ever, Angel needs all the support he can get to regain his
freedom.
Denise Gonzlez Nez is a human rights advocate at the Miguel Agustin Pro Human Rights Centre and graduated Master of
Studies in International Human Rights Law from the University of Oxford.

Providing Syrian Survivors of Torture Access to Rehabilitation Services


By Annie Sovcik | 13th October 2014

Mental health and other rehabilitation services can be key to restoring basic functioning and facilitate resilience and positive coping
strategies for refugee survivors of torture.
In the summer of 2012, Ibrahim was arrested at a security checkpoint in Damascus. For the next 20 days, he was repeatedly
beaten unconscious, hung from the ceiling and kicked while being interrogated. When he was released, Ibrahim found he no
longer had a home to return to during his time away, his house and neighborhood had been completely destroyed. Although his
wife and young children escaped, the life the family had known was over. The sound of explosives, sight of snipers, uncertainty of
forced displacement, and hardship of extreme poverty became their new reality.

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As civil war continues to ravage Syria, this familys story is hardly unique. The numbers are staggering: over 3 million Syrians are
registered as refugees and another 6.5 million are internally displaced. Over 50% of forcibly displaced Syrians are children.
Beyond the numbers are horrifying reports of torture, targeting of civilians, rape, kidnappings, starvation and massacres. In addition
to being one of the worst humanitarian crises of our time, the events in Syria have unfolded into one of the most egregious human
rights atrocities the world has ever witnessed. At our clinics in Jordan, staff at the Center for Victims of Torture (CVT) providing
mental health counseling and physiotherapy services to Syrian survivors of torture and severe war atrocities have heard hundreds
of stories of widespread and industrial-style torture that are consistent with documentation by the United Nations, other human
rights organizations, and a collection of photographs smuggled out of Syria that provide evidence of the systematic killing and
torture of about 11,000 detainees. CVTs torture survivor clients include a growing number of children and adolescents who have
themselves been abducted for weeks or months and beaten, sexually assaulted, held in isolation, deprived of food, water and
otherwise tortured.
Recognizing the destructive effects of torture, Article 14 of the U.N. Convention Against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) prescribes that survivors should have access to redress, including rehabilitation
services. CAT Committee General Comment 3 explains, In order to fulfill its obligations to provide a victim of torture or ill-treatment
with the means for as full rehabilitation as possible, each State party should adopt a long-term, integrated approach and ensure that
specialist services for victims of torture or ill-treatment are available, appropriate and readily accessible.
As described in CVTs recent article on the mental health of Syrian refugees published in the Forced Migration Review, studies
have found a strong association between exposure to instances of trauma and mental health symptoms. Daily stressors caused
by conflict and displacement, such as inadequate housing, unemployment and changes in family structure may worsen symptoms.
These problems affect adults and children directly, and indirectly, by affecting parents relationships with their children. They impact
social interactions, exacerbate feelings of isolation and separation from community supports. They have a direct impact on physical
health, resulting in problems with functioning, including self-neglect, decreased participation in daily activities, and decreased
capacity to care for children.
Mental health and other rehabilitation services can be key to restoring basic functioning and facilitate resilience and positive
coping strategies for refugee survivors of torture and their families. Recognizing this, donor countries seeking to support survivors
of torture should contribute or increase their contributions to the United Nations Voluntary Fund for Victims of Torture, which
provides grants to organizations that offer psychological, medical and social assistance, legal aid and financial support to survivors

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of torture. Overall, donor and host states, as well as the United Nations High Commissioner for Refugees, should elevate the
prioritization of mental health and psychosocial support services as an integral component of the overall strategy on responding to
the Syrian refugee crises.
Annie Sovcik is the Director of the Washington Office at the Center for Victims of Torture (CVT). CVT provides healing services to
survivors of torture and severe war atrocities at its clinics in the United States, Jordan, Kenya and Ethiopia and engages in training
and capacity building initiatives worldwide.

The Unified Screening Mechanism: Hong Kong to Assess Refugee Claims Alongside
Torture Claims
By Lillian Li | 20th November 2014

The UNHCR previously had the role of assessing and determining refugee claims (persecution claims) in Hong Kong in
accordance with Art. 33 of the Convention Relating to the Status of Refugees (1951) (Refugee Convention). The UNHCR has now
ceased its refugee screening mechanism and has implemented the Unified Screening Mechanism (USM) in response to the
Court of Final Appeals ruling in the case of C v the Director of Immigration FACV 18-20/2011.
The USM officially commenced on 3 March 2014 and the Immigration Department is now responsible for assessing and
determining both torture and persecution claims under one integrated system. All potential claimants may now bring a claim either
on the basis of torture, persecution, or both.
A USM claimant lodging a persecution claim must show the following:


he/she has a well-founded fear of being persecuted on account of one or more grounds of race, religion, nationality,
membership of a particular social group or political opinion,
he/she is outside his/her country of nationality and is unable, or, owing to such a fear, unwilling to avail himself/herself of the
protection of that country; and
his/her life or freedom would be threatened on account of his/her race, religion, membership of a particular social group or
political opinion should he/she be expelled from Hong Kong or returned to another country where the applicant has made a
persecution claim.

These five grounds (in bold) are the same as those stated in Art.33 of the Refugee Convention. However, the Government has
confirmed its position that it will not ratify the Refugee Convention or its 1967 Protocol and that the ruling in C v the Director of
Immigration does not compel it to do so.
All USM claimants are entitled to receive publicly funded legal assistance from lawyers who are part of the Duty Lawyer Service
(which has been providing legal assistance to former torture claimants since December 2009 after the Court of First Instance ruled
in December 2008 in FB & Others v the Director of Immigration HCAL 51/2007 that the Government had an obligation to provide
legal assistance to torture claimants who are unable to afford legal representation). Legal assistance will cover the entire USM
screening process; including the completion of forms, submission of evidence, attendance at screening interviews, and any appeal
process. All unsuccessful claimants are permitted to lodge an appeal.
USM Claimants who substantiate their persecution claims will be referred to the UNHCR who will over-see the re-settlement of the
claimant to a third country. Despite the reforms brought about by the USM, the Government has maintained its policy of refusing to
re-settle successful claimants in Hong Kong.
One of the most significant impacts of the USM is that all decisions of the immigration officers are now capable of being subject to
judicial review and scrutinized by the local courts to ensure that their assessments meet a high standard of fairness (as required
under local law). Under the previous scheme, decisions made by the UNHCR were not subject to judicial review as the Government
has no jurisdiction over the UNHCR. The Director of Immigration also formerly maintained a policy of repatriating all unsuccessful
claimants as adjudged by the UNHCR without first making a separate and independent inquiry into the merits of their application.
This repatriation policy came under heavy criticism as it was not possible to ensure that the UNHCR determination process reached
a high standard of fairness.
The implementation of the USM has been seen by many non-governmental organizations and public lawyers as a milestone in the
development of Hong Kong refugee law and policy. It also evidences the Governments compliance with its international obligations
under the Convention against Torture (1984) and customary international law.
However, some of the same criticisms made about the previous screening systems have also been made to the USM screening

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process. Local NGO staff workers and USM claimants contend that the screening process lacks accountability and transparency,
local advocacy groups have not been consulted, and the questions asked to claimants have not changed from the previous
systems. As of November 2014, there are 9,500 outstanding USM claims and only 504 claims have been dealt with since March.
The recognition rate is 0.2%.
Lillian Li currently works with the Hong Kong Judiciary and is a qualified solicitor in Hong Kong. She was previously a casework
volunteer at the Hong Kong Refugee Advice Centre (now known as the Justice Centre) for two years.

Second Strike and You are (Finally) Out? The Israeli Supreme Court quashes (again) the
Prevention of Infiltration Law
By Reuven (Ruvi) Ziegler | 9th October 2014

On 22 September 2014, the Israeli Supreme Court sitting as a High Court of Justice quashed in a 217-page judgment (HCJ
8425/13 Anon v. Knesset et al) the Prevention of Infiltration Law (Amendment no. 4).

The amendment enacted two schemes: first, section 30A, authorising the detention for one year of any infiltrator (the term was
introduced by the above law, and shall be used in quotation marks in this discussion) entering Israel after the amendments coming
into force. Second, Chapter D, authorising the holding in an open residency centre of infiltrators whose removal from Israel
(according to the States official determination) proves to be difficult. Infiltrators are to be held indefinitely unless they voluntarily
agree to return their state of origin, or to be transferred to a third state. Almost a year to the day, on 16 September 2013, the same
panel quashed Amendment no. 3 that authorized the detention of infiltrators for three years. This is the first time that the Supreme
Court has re-annulled primary legislation.
Justice Uzi Vogelman authored the main judgment, which holds both legislative schemes to be in violation of the constitutional
rights to liberty (section 5 of Basic Law: Human Dignity and Liberty) and to human dignity (sections 2 and 4 thereof) by failing to
satisfy the proportionality requirement in section 8 (the limitation clause); the latter provision stipulates that [t]here shall be no
violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and
to an extent no greater than is required. Justice Vogelman emphatically stated that infiltrators are people too. And if this merits
explanation, let it be said explicitly: infiltrators do not shed any part of their dignity due to their method of arrival [or] by entering a
detention or residency facility, and their right to human dignity remains intact even if they have arrived irregularly [123].
Six of the nine justices (Uzi Vogelman, Miriam Naor, Edna Arbel, Yoram Danziger, Salim Joubran, Esther Hayut) annulled
section 30A (Chief Justice Asher Grunis and Justices Neal Hendel and Yitzhak Amit dissenting).A close reading of the previous
judgment (HCJ 7146/12) reveals that Justices Hendels dissent should have been anticipated, as he dissented from the operative
part of the otherwise unanimous judgment. Similarly, Chief Justice Grunis asserted in his concurrence that a re-enacted law
authorising a significantly shorter detention period could pass constitutional muster. In contradistinction, Justice Amits dissent
rests on distinguishing between section 30A and the quashed Amendment no. 3: while the former applies prospectively, and is
hence directed towards a non-specific group of persons who have not yet transgressed the states borders, the latter applied

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retrospectively to infiltrators who entered prior to its passage [7]. However, as Justice Arbel noted, newcomers subject to the
states jurisdiction enjoy constitutional rights to liberty and dignity [9]; moreover, a nulla poena sine lege principle seems out of
context.
Seven justices (including Justice Amit) annulled Chapter D in its entirety. Chief Justice Grunis and Justice Hendel considered
only the provision authorising three daily counts to be unconstitutional, and would have removed the second (midday) count
requirement, leaving intact the morning and evening counts as well as the rest of Chapter D. The main judgment cautioned against
letting the name open facility to lead us astray: it is a facility similar in essence to a closed facility which violates part of the
minimum dignified life to which every person is entitled [126]. Notingthat the requirement to be present for the three daily counts,
alongside the great distance from settlements in the region, negates nearly any possibility to leave the centre on a routine basis,
justice Vogelman rhetorically asks: is it, therefore, an open centre? [Id]. Indeed, even the dissenting justices observed that the
scheme as it currently operates is akin to a closed facility: the significant difference between the majority and dissenting judgment
pertains to the (in)ability to mitigate the harm caused by the scheme, and the consequent divergent remedies.
Reuven (Ruvi) Ziegler is a Lecturer in Law at the University of Reading.

Detention of African Asylum Seekers in Israel: Welcome to Round Three


By Reuven (Ruvi) Ziegler | 15th December 2014

On 8 December 2014, hours before dissolving itself in preparation for early elections arranged for 17 March 2015, the Israeli
Parliament, the Knesset enacted (by a 47 to 23 majority, with 3 abstentions) the Law for Prevention of Infiltration and Ensuring
the Departure of Infiltrators from Israel Under the new legislation, infiltrators who enter Israel and cannot be deported will be
automatically detained for three months at the Saharonim prison in the Negev desert (reduced from one year under the quashed
legislation). Infiltrators already in Israel, as well as new arrivals (following their three months detention) can be detained at the
Holot detention centre for 20 months (as opposed to indefinite detention under the quashed legislation).Over 2,200 persons are
currently held in Holot pursuant to the quashed legislation; they are expected to remain for what is now fixed-term detention.
The detainees will be required to report for a headcount between 8 and 10pm every night, and the detention centre will be locked
shut at night. While the length of detention was shortened, its prison-like characteristics (managed by the Israel Prison Service,
which conducts searches on persons entering and leaving the facility), the fact that detainees are barred from working, and the
facilitys remote location in the Negev desert are likely to render the possibility to leave the facility at daytime rather futile. Moreover,
violation of the sign-in conditions can lead to up to four months detention in the closed facility, at the discretion of the Population,
Immigration and Borders Authority.
In the two previous rounds of litigation, the HCJ unveiled the unsoundness of the overall state policy. On one hand, Israel
recognises the fact that Eritrean and Sudanese nationals cannot be deported. On the other hand, it detains them in an effort, now
explicitly manifested in the legislations title, to entice them to leave. It is worth reiterating Justice Uzi Vogelmans main opinion in
the above HCJ judgment, stressing [193] that the question is not only quantitative what is the maximum constitutional length of
time for detention in custody but also (and perhaps primarily) qualitative whether it is permissible to detain a person not subject
to effective deportation proceedings. To this question I respondabsolutely not.
Since the legislation applies to infiltrators who according to the states determination cannot be deported, persons detained will
be released after 20 months without any plan for regularisation of their precarious legal status. Indeed, the legislation also amends
the migrant workers law 1991, imposing financial sanctions on the (majority of) non-detained infiltrators who are in un-regularised
employment: they will not receive severance pay or pensions to which other Israeli workers are entitled. Instead, their employers
will have to deposit 16% of the salary in a separate account, and to deposit further 20% of their salary on behalf of their employees.
This money will be released only upon the employees departure. Hefty fines are imposed for breaches. The legislative aim is twofold: encourage asylum seekers to leave, and discourage employers from employing them. The immediate outcome will be further
destitution, especially as infiltrators do not receive benefits or state assistance.
A petition to the HCJ challenging the constitutionality of the legislation is imminent. The HCJ, faced with detention legislation
premised on the same tenets found to be unconstitutional less than three months ago, will be forced into an making an unsavoury
choice: quash the legislation for the third time, an unprecedented move in the states history, and face real risk of legislative
attempts in the next parliament to limit its judicial review power; or uphold it based on a proportionality analysis, permitting arbitrary
detention of persons in need of international protection. Stay tuned-it will be a hot winter.
Dr. Reuven (Ruvi) Ziegler is a Lecturer at the University of Reading School of Law.

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Internally Displaced Persons in Ukraine


By Richard Verber | 19th August 2014

Well over 300,000 people have been displaced from their homes due to the ongoing violence in Ukraine. We have seen two waves:
the first displacement from the south of Ukraine began before the March referendum in Crimea, and the second from the east due
to ongoing fighting between the Ukrainian army and pro-Russian separatists.

The UN Office for the Coordination of Humanitarian Affairs (OCHR) estimates that some 3.9 million people live in areas directly
affected by violence.
Back in June, the Ukrainian government recognised the issue of internally displaced persons (IDPs) and ordered the creation of an
electronic database followed by a new law to determine their legal status. As of August 14, 2014, the database is yet to be created
and no law has reached the statute books. This renders IDPs legal status unclear. The lack of a database is hampering relief
efforts as it is unclear how many people need support or where best to direct resources.
Although no law has been passed, the national government has given an informal order to regional (oblast ) governments to
assist IDPs. They have not stipulated what level of support should be offered though. Oblasts budgets vary, meaning some are
able to provide shelter, some can offer social services, some both and some neither. Efforts are supplemented by NGOs such as
ours, private donations and the UNHCR. Were a humanitarian crisis to be declared, the UNHCR would be able to intervene more
easily through the mobilisation of international donor organisations.
Defining IDPs legal status is further hampered by the varying degrees to which the IDPs feel themselves to be displaced. Many
consider their displacement to be only temporary: having fled the fighting, they hope to return to their homes when they can. We
have seen this in Sloviansk and Kramatorsk. The widespread fighting there, however, has created a second wave of IDPs, who,
having gone back, have found rebels living in their homes or their houses destroyed. Those who could afford it left their homes
months ago when they realised how events might unfold.
Even more Ukrainians have fled to Russia (188,216) than are displaced in Ukraine (139,170), according to UNHCR figures. Some
have Russian citizenship, some claim asylum as refugees. The UNHCR has said that most do not claim asylum, however, choosing
to apply for some other legal status instead for fear of creating difficulties for themselves down the line.
What will make creating an electronic database challenging is that IDPs are often forced to flee with just a plastic bag containing a

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few clothes. As they have no documents, they are unable to claim their entitlements when they arrive at a different city. Those with
documents can get help more easily. Legal assistance is urgently needed for those without documentation, many of whom fled for
their lives as the fighting
approached. Adding further complexity is that some Ukrainians who feel close to Russia dont want to register: they dont trust the
Ukrainian authorities or feel theyre behind enemy lines. Some are Russian citizens who dont want to register as they feel they
might get in trouble.
Lastly, the term refugee is not used to describe IDPs because as the law currently stands, only someone who finds themselves
stateless, or in a country which is not their own, can apply for refugee status. Ukrainian citizens, still in Ukraine, cannot therefore
apply for refugee status, and are not entitled to the rights refugee status affords. Others still feel that the government isnt going
to support them anyway, or think it will only be a short amount of time before they go back home. The trauma begins when they
realise this will not be the case.
As the new school year rapidly approaches, the need for a database becomes ever more urgent. Parents will want to register
their children somewhere, so we expect the IDP figures to change in the coming weeks. How will they be accommodated in the
education system? And how long will they have to remain there for?
It is likely to be a while before we know any answers.
Richard Verber is World Jewish Reliefs Campaigns Manager. World Jewish Relief is a UK-based international development agency
with a particular expertise in Ukraine and across the Former Soviet Union.

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192

Introduction Elena Butti

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Practices Harmful to Women and Girls Joint CEDAW and CRC General Recommendation/
Comment

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The Uncomfortable Place of Inter-Country Adoption in the Human Rights Arena

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The Uncertain Status of Child Rights in the UK

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Children Gain Access to International Justice

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Geneva II, Politicking and Possibility for Syrias Invisible 43%

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Towards the Abolition of the Detention of Immigrant Children?

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Children in an Age of Austerity: The Impact of Welfare Reform on Children in Nottingham

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British Schindler and a History of Neglect of Refugee Children

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Introduction
By Elena Butti

The past year has been an eventful one for childrens rights. April 2014 saw the entrance into force of the Third Optional Protocol
(3OP) to the Convention on the Rights of the Child (CRC) on a Communications Procedure. In October 2014 the Nobel Peace
Prize was awarded to two child rights activists (one of them, Malala Yousafzai 17-years-old) fighting for the right to education.
Finally, on 20th November 2014 we marked the 25th anniversary of the CRC.
The OxHRH Blog posts that accompanied these developments and collected in this chapter are, however, far from celebratory. The
25th Anniversary constituted an opportunity to look back and reflect on what has been achieved and what is still to be done. Many
posts refer to the paradoxically stark contrast between the expectations raised by the almost-universally-ratified CRC and the reality
in which many children live. The question is, then, for academics to find out why this gap exists, and for policy-makers to determine
how to reduce it.
Many posts comment on the difficult situation of children living in austerity. Rebecca Carrs piece (The Uncertain Status of Child
Rights in the UK p 196) shows how economic cuts due to the financial crisis in the UK disproportionately affect children from poorer
backgrounds. The vulnerability of children in poverty is also at the centre of Haleema Wahids post (Children in an Age of Austerity:
The Impact of Welfare Reform on Children in Nottingham p 200) on the impact of welfare reform on children in Nottingham.
These contributions invite us to reflect on the too often disregarded issue of how poverty impacts the wellbeing of children in first
world countries, a theme also addressed by a recent comparative quantitative study conducted by the UNICEF Innocenti Office of
Research (Y Chzhen, Y, Mde Milliano, C De Neubourg, and I Plavgo, Understanding Child Deprivation in the European Union: The
Multiple Overlapping Deprivation Analysis (EU-Moda) Approach Innocenti Working Papers 2014-18 (2014)).
Poverty and inequality do not only affect children within a country, but also those who, for a reason or another, move across
countries. Mariela Neagus piece (The Uncomfortable Place of Inter-Country Adoption in the Human Rights p 195) sheds light on
the problematic issue of inter-country adoption, where rich countries demand for children generates interpretations of the CRC
which are often to the detriment of the best interest of children in third world countries. Migrant children are similarly vulnerable.
They are often forced by structural factors in their countries of origin, such as poverty or political persecution, to migrate to richer
countries. When they arrive, they are subject to strict immigration laws, as outlined in Isabelle Kadishs piece (British Schindler
and a History of Neglect of Refugee Children p 202), and may even face detention as Holly Buicks contribution (Towards the
abolition of the detention of immigrant children? p 199) explains. These are all examples whereby the CRC is not altogether
ignored by first world countries, but rather its provisions are strategically interpreted. As a result, policies and practices serve
interests other than those of the child, such as providing children for adoption or limiting immigration.
Indeed, law is important but it can only be effective if its spirit is understood and interpreted in the social and cultural context of
every country. It has to be read and used in conjunction with other social factors that determine the wellbeing of children. In this
light, Mariya Alis piece (Practices Harmful to Women and Girls Joint CEDAW and CRC General Recommendation/ Comment
p 194) invites us to reflect on the ever-lasting tension between (childrens) rights and culture. She notes how loose, culturally
determined interpretations of best interest may allow for practices such as female genital cutting, early marriage and plastic
surgery which are considered important in some cultures but harmful in others. Yet, the top-down imposition of western cultural
standards through law is not the solution. For example, in my own research in Tanzania (E Butti, What Made These Women so
Mad at Me? Arguing for a Soft Approach in Addressing the Issue of Female Circumcision (2013) Culture and Human Rights at
http://culture-human-rights.blogspot.fr/#!) I have found that the legal prohibition of female genital cutting only contributes to driving
the practice underground rather than discouraging it. As Paul Bornan argues (Reflecting on 2014: 14 things weve learned The
Child Poverty and Development Blog (2015) at http://blog.younglives.org.uk), effectively addressing harmful practices requires a
deep understanding of the root causes and cross-cultural dialogue which remains sensitive to local interpretations of best interest.
As the Education sub-chapter of the Socio-Economic Rights chapter of this anthology highlights, education could play an important
role in addressing the issues outlined above. As Prof. Fredman noted in the first OxHRH webinar on the Right to Education this
year (see: http://ohrh.law.ox.ac.uk/right-to-education-prof-sandra-fredman-oxford-university/), the right to education is a multiplier
right because it allows children to better enjoy all the other rights. Education can counter poverty and migration by providing better
livelihood options for children, and can help to address delicate cultural issues through more informed dialogue. However, it is a
long-term investment. It requires the perseverance shown by Malala Yousafzai and Kailash Satyarthiand. But not all politicians are
so long-sighted. Sad evidence of this is the recent issue of the Guidelines for Protecting Schools and Universities from Military Use
During Armed Conflict by the Global Coalition to Protect Education from Attack. The initial idea behind this project was to create
a binding convention, but the governments lack of willingness to seriously commit to protecting schools in conflict determined a
resort to an instrument of soft law devoid of any binding power. Why? The answer is simple: schools are a very convenient base for
government armies, too.
To go back to the original question, then, why is there such a big gap between the promises of the CRC and the reality experienced
by so many children across the world? Why are children still so invisible, as Sarah M. Fields piece (Geneva II, politicking and
possibility for Syrias invisible 43% p 198) illustrates, in contexts where important policy decisions are taken? While childrens

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rights are advertised by many of those in power as a priority, the expression is often rhetoric devoid of actual meaning and
commitment. As the posts in this chapter show, overriding considerations such as alternative financial priorities and the desire
to control immigration flow, or a tendency to put in place short-sighted and culturally insensitive solutions, too often come at the
expense of childrens wellbeing.
Increasing childrens own ability to report about violations of their rights, as the CRC Optional Protocol 3 allows (commented
upon by Sara Austin in Children Gain Access to International Justice p 197) can be a step forward. But it cannot be the only way.
Those in power must stop using a childrens rights rhetoric merely to create a good self-image at little cost. Childrens lives will
not be improved through tokenistic interventions. Full commitment to put other interests aside to protect children is needed. For
academics, this means that the time has arrived to stop looking at childrens rights as a stand-alone issue, but rather, as the work
of the OxHRH Blog demonstrates, to look at them in context. Urgent politically charged issues such as the changing nature of
conflict, growing migration flows and climate change need to be looked at through the lenses of childrens rights, and to ask what
those rights, often formulated in abstract terms, mean to children themselves. In other words, it is about looking at apparently
disconnected world problems through the eyes of the next generations and asking: what would I want for my tomorrow?
Elena Butti is a DPhil in Law Candidate at the University of Oxford and the co-founder of the Oxford Childrens Rights Network.

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Practices Harmful to Women and Girls Joint CEDAW and CRC General
Recommendation/Comment
By Mariya Ali | 19th December 2014

Coinciding with the 25th anniversary of the United Nations Convention on the Rights of Child (CRC) and the 35thanniversary of
the Convention on the Elimination of Discrimination Against Women (CEDAW), the two UN human rights committees have jointly
issued a General Recommendation/General Comment (GR/GC) outlining State obligations in preventing and eliminating harmful
practices inflicted on women and girls. These practices are maintained and perpetuated through societal attitudes and passed
down through generations. This GR/GC attempts to break the generational transmission by those who have undergone procedures
such as Female Genital Mutilation (FGM). Such practices are celebrated, often masked in a festive mood, and believed to bring
respect to the girl and family.
Among the other issues addressed by both the committees are widowhood practices, infanticide, binding and body modifications,
including fattening, neck elongation and breast ironing. They also highlight plastic surgery undergone by women and girls to
conform to social norms of beauty. Social norms are internalised in childhood and early adolescence through the socialisation
process.
The GR/GC explicitly addresses the importance of facilitating discussions among children and those that are in their early
adolescence on social norms, attitudes and expectations that are associated with traditional femininity and masculinity and
sex- and gender-linked stereotypical roles; and, working in partnership with them, to support personal and social change aimed
at eliminating gender inequality and promoting the importance of valuing education, especially girls education, in the effort to
eliminate harmful practices that specifically affect pre-adolescent and adolescent girls.
The committees highlight that harmful practices are grounded in discrimination and describe the causes of harmful practices as
multidimensional, which include stereotyped sex and gender-based roles, the presumed superiority or inferiority of either of the
sexes, the attempt to exert control over the bodies and sexuality of women and girls, social inequalities and the prevalence of maledominated power structures. Although the concept of honour applies to all these practices at varying levels, the GR/GC does not
make this explicit.
These practices result from a combination of factors including misinterpretation of religious rulings, customs, tradition and cultural
influences giving rise to honour cultures that prescribe strict codes of sexual morality and general behaviour. Honour values can
be termed an ideology giving power to men and oppressing women and children, based on gender and sexuality. Men are seen as
the custodians of womens chastity, and any loss or damage to their honour is damage to the male kin and collectively to her family.
These practices are shown as protection rather than abuse for women and girls when viewed through the honour lens.
Sometimes girls and women are killed or driven to suicide because of the perceived dishonour their suspected or actual sexual
activity, or even rape, is supposed to have brought on their family. The GR/GC acknowledges that the perpetrators of sexual
violence avoid punishment altogether or receive a reduced sanction. The committees also acknowledge the pressure on young girls
to conform to practices such as FGM in order to avoid being isolated, stigmatised and rejected.
The term honour is gender-neutral and can carry many meanings such as respect, dignity and reputation. Therefore, what
constitutes the best interest of the child in communities that observe strict codes of sexual morality and general behaviour can be
overshadowed when viewed through the honour lens. Harmful practices that are enmeshed in honour ideology can be eliminated
gradually, allowing changes to occur organically and to achieve sustainability.
The GR/GC has therefore emphasised the importance of adopting a rights-based approach to transforming social and cultural
norms, through cross-cultural and internal dialogue in order to collectively explore and agree on alternative ways to fulfil their
values and honour/celebrate traditions without causing harm and violating human rights of women and children
The CEDAW and CRC Committees place importance on legislative prohibitions on harmful practices and emphasise that capacity
building must include front-line professionals, including health and education professionals and social workers, traditional and
religious leaders, the police, immigration authorities, public prosecutors, judges and politicians at all levels. Along with these efforts
at raising awareness through the dissemination of the GR/GC, protection services must be strengthened to ensure the sustainability
of new social norms. A paradigm shift can be effectively achieved only through holistic approaches, as the Committees have
proposed.
Furthermore, the GR/GC also links practices of forced and childhood marriages and polygamy with poverty and the principle of
supply and demand. These factors are relevant in a globalised world where people move from country to country and take their
customary laws with them.
Country reports have shown that, although childrens rights have been respected in many State parties, the rights afforded by the
CRC are not carried through by those enshrined in the CEDAW with the attainment of adulthood. This GR/GC, therefore, brings the

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life cycle perspective to the forefront, as well as the importance of working together on womens rights and childrens rights to tackle
the various forms of violation committed against women and children in the name of protecting honour and sexuality.
Dr. Mariya Ali is an Honorary Knowledge Exchange Associate of Oxford Brookes University, School of Law, where she is active in
advocating and publishing in the area of childrens rights.

The Uncomfortable Place of Inter-Country Adoption in the Human Rights Arena


By Mariela Neagu | 12th December 2014

While November marks the anniversary of the UN Convention on the Rights of the Child (UNCRC), the United States (one of the
two countries yet to ratify the UNCRC) celebrates adoption month.

Inter-country adoption (ICA) occupies a very marginal place within the UNCRC. According to article 21, inter-country adoption may
be considered as an alternative means of childs care, if the child cannot be placed in a foster or an adoptive family or cannot in any
suitable manner be cared for in the childs country of origin. Moreover, article 21 only applies to countries that recognize and/or
permit adoption.
Although adoption was initially included in the text of the draft UNCRC, Bangladesh took the position that adoption is not
recognised under the Muslim law and requested a form of words be found to protect Islamic conceptions on the subject
(Detrick, 1999, 346). Muslim countries do not recognise adoption, rather protecting children in need using kafalah, a form of
permanent foster care in which the child maintains his or her identity. The other reason why the UNCRC almost entirely excludes
ICA, leaving it as an option of last resort, is the fact that during the drafting process, a high number of gross abuses were brought to
the attention of the drafting group (UNICEF, Innocenti, 1998). ICA has long been characterised by widespread abuses and corrupt
practices, and this why it was barely accepted as an option of last resort in the text of the UNCRC.
But despite wide ratification of the UNCRC, what little protection that is offered in article 21 is not followed in practice. Basic
features of domestic adoption, such as placement with the prospective parents before adoption is finalised, are legally difficult in
ICA. If bonding does not occur, children will end up in care in a completely estranged environment.
In ICA, children are often transported by middlemen to their adoptive parents taken by people she/he does not know to people

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she/he does not know, while many thousands or tens of thousands of euro change hands. In that sense, adoption resembles sale
of children, (Article 2a, Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography), or child laundering as
David Smolin, one of the academics critical of ICA calls it (Gibbon and Rotabi, 2012, 243).
ICA is largely the response to a demand for children in developed countries, rather than the absence of care in the countries
of origin. Taking children away does not lead to any improvement of the protection of children in those countries, but rather the
contrary (Chou and Browne, 2008).
According to human rights conventions, such as the UDHR and the ICESCR, motherhood should be protected, and parents have
a right to social protection and assistance. Enforcement of these rights would, in many cases, prevent the separation of children
from their families. And if they dont, the state has a duty to provide a suitable form of care. According to article 20 of the UNCRC,
when considering solutions, due regard shall be paid to the desirability of continuity in a childs upbringing and to the childs ethnic,
religious, cultural and linguistic background. From a human rights perspective, sending children in ICA can be regarded as the
result of a countrys failure to fulfill its international human rights law obligations.
The last years have brought new insights from an institution shielded by secrecy. A recent book, Adoptionland: from Orphans to
Activists, gives the perspective of the adoptees. Movies like Philomena disclose a very unfortunate episode in the recent history of
Ireland. Mercy, Mercy A Portrait of True Adoption is a documentary filmed over four years, which follows the route from a country
of origin to a European country, shows the subtleties of everyday life in ICA. Although different in style, they encapsulate fifty years
of ICA history, showing the features of ICA and the complexities that lie behind it. They represent an important step in revealing the
bleak shades of a rosy picture and could serve as a source of inspiration for scholars in different fields.
Mariela is a DPhil student at the Rees Centre for Research in Fostering and Education, based in the Department of Education,
University of Oxford.

The Uncertain Status of Child Rights in the UK


By Rebecca Carr | 26th November 2014

This November marks the 25th Anniversary of the Convention on the Rights of the Child (CRC). An atypical fusion of both civil and
political, and economic, social and cultural rights, the CRC is the most widely ratified international human rights treaty in history,
with all but two of the worlds states signing on. While impressive gains have been made to protect childrens rights over the years,
the current UK Governments commitment to truly upholding the CRC can be called into question and indeed must be held to a
higher account.

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At its essence, the CRC seeks to promote the inherent dignity and equal and inalienable rights of all children. Since 2010, however, austerity measures have been used to justify a series of government policies that have led to the erosion of many childrens
socio-economic rights, including their rights to health, food and an adequate standard of living.
Still, almost a third of all children in the UK live in poverty; over 330,000 children were reliant on emergency food banks in
2013/2014, and Shelter reports that over 90,000 children will be homeless this Christmas.
Civil and political rights have taken a hit too. For example, children as young as 10 will soon be able to receive IPNAs (injunctions
to prevent nuisance and annoyance), under a new government system to regulate anti-social behaviour, and the polices use of
Taser guns on children increased by 139% between 2009 and 2011 alone.
Not all children in the UK experience such rights violations to the same degree; children from poorer backgrounds face a higher
risk. Those living in poverty often lack the means to live with the basic dignity that a States observance of the CRC would enable,
and critically, they have less access to the power structures that serve to shape the social conditions dictating their lives.
The links to be found between poverty and rights violations is well documented; however, the governments response to this nexus
appears short sighted.
While the government has taken some steps to address child poverty in the UK, such as implementing the Child Poverty Act 2010
and appointing a Childrens Commissioner and Social Mobility and Child Poverty Commission, it has failed to offer a clear or
effective method for childrens human rights enforcement.
The government has failed to ratify the third optional protocol to the CRC that would, for example, enable children raise their
individual complaints with the CRCs monitoring committee themselves. Further, it has failed to directly incorporate the provisions
of the CRC domestically, as the European Convention on Human Rights has been domesticated through the Human Rights Act
1998, which would enable children invoke its provisions before UK courts and allowing those provisions to be applied by national
authorities.
Drastic cuts to the legal aid budget, resulting from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, removing
funding for entire categories of law, such as family law (whereby only those cases in which there is evidence of domestic violence,
forced marriage or abduction can attract funding), will affect up to 68,000 children a year, according to the Bar Council. Further,
proposals to limit the ability of third party interveners seeking to bring judicial review cases before the courts, as outlined in the
Criminal Justice and Courts Bill, by requiring them to pay any costs incurred by the other side as a result of their involvement
(except in exceptional circumstances), will further undermine the abilities of those seeking to enforce childrens rights.
If rights are to be effective, children must be able to access and rely on the courts, and other rights enforcement bodies protection,
when violations of their rights occur.
As the CRCs momentous 25th anniversary is reflected on, the government must now take the requisite steps to address ongoing
child rights violations in the UK, by affording children and their representatives with the opportunities to enforce their rights, and to
ultimately hold it to a higher account.
Rebecca Carr is a BPTC Student at BPP University and recently completed an LL.M. at the University of Toronto.

Children Gain Access to International Justice


By Sara Austin | 16th April 2014

This week marks a major breakthrough in international justice for children. It is a turning point in a deeply personal battle of justice
for children that I have fought for the past 15 years. I have dedicated my life to defending the rights of children around the world,
particularly the most vulnerable children. Through my work at World Vision, I have had the opportunity to travel extensively to do
research, programs, and policy work to empower children affected by extreme poverty and exploitation. I have advocated for the
implementation of the UN Convention on the Rights of the Child (CRC) and have worked hand in hand with children, NGOs and
governments to help realize the rights the CRC contains.
Through my experiences, I was struck over and over again by the fact that so many of the children I met were living lives that
were starkly different from those promised to them by their governments. The CRC was a shining beacon of hope for all of the
possibilities that life could hold for children. And yet, day in and day out, I met children who were fighting to survive, let alone thrive.
As an advocate, I was using all of the tools available to me to bring about change, and yet even the United Nations was struggling
to hold governments accountable. Year after year, children and NGOs have submitted reports to the UN Committee on the

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Rights of the Child concerning the gaps in progress. And year after year, the UN Committee has issued stern conclusions and
recommendations to governments. But the pace of change has been painfully slow.

When the opportunity arose during my graduate studies at Oxford to develop a dissertation on the rights of children, I wrestled with
what I could contribute that would make a meaningful change in the lives of the children I had met. The biggest gap that I saw was
that while 193 States had ratified the CRC, nothing tangible could be done to ensure that children received justice when their rights
were systematically denied.
Through that process, I developed a proposal for the creation of the 3rd Optional Protocol to the CRC (OP3 CRC) and went on
to launch and lead the global campaign that helped bring this law into force on April 14, 2014. It was a tangible contribution that I
could make towards protecting the rights of children and to helping ensure that they receive the justice they so urgently need.
The OP3 CRC allows children, groups of children or their representatives, who claim that their rights have been violated by their
State, to bring a communication/complaint to the UN Committee on the Rights of the Child. It also allows any interested party to
provide information about grave or systematic violations of childrens rights to the UN Committee on the Rights of the Child through
an inquiry procedure.
The challenge is that this procedure is only available to children if their State has ratified the OP3 CRC. Children have waited too
long for this moment, and many more will continue to wait for their governments to take tangible action to bring their rights into
reality. As the international community prepares to mark the CRCs 25th anniversary this November, I urge the members of the UN
to refrain from delaying justice any longer. I commend the ten Member States that took swift action to ratify the OP3 to ensure its
entry into force, and I am encouraged by the 45 States that have signed the protocol and are taking steps towards ratification. I
urge the remaining 138 States that have ratified the CRC to also ratify the OP3 without delay.
We simply cannot afford to let more precious lives slip away while rationalizing delays in providing timely justice. In the spirit of the
promises made to children when the CRC was first created 25 years ago, UN Member States should show children that their rights
really do have meaning by immediately ratifying the OP3 CRC.
Sara L. Austin is a Director at World Vision Canada and a Steering Committee Member of the International Coalition for the
Optional Protocol for the Convention on the Rights of the Child.

Geneva II, Politicking and Possibility for Syrias Invisible 43%


By Sarah M. Field | 8th January 2014

The possibility of peace in Syria may seem more like an international force (pun intended) than a beacon of hope. History though
tells us to believe.* The form of the conflicts resolution is simply unimagined as yet. A dig deeper though and history also tells

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us another story: the transformation of conflict is likely to be partial children, particularly, are likely to be invisible within decisionmaking towards peace agreements. To date, the Syrian peace process substantiates this: there is no reference to children, who
make up 43% of the population, within Geneva Communiqu I and just one reference within the Communiqu of the London 11.
And herein lies the paradox. From the Central African Republic to Syria (and beyond), no one can be unaware of the impact of
conflict on children. Though politicians recurrently invoke them the children hurt and harmed by conflict as a call to action
(whether towards military action or advancing peace), they seldom raise the subject of children and their rights within decisionmaking towards agreements. A cynic might reason the confluence of interests is missing; without any broader political gain,
principled commitments to children are insufficient to ensure the child question is raised and prioritised. Certainly there is some
truth to this reasoning. However, it is also likely that the politicking towards and subsequently within the peace trajectory
subsumes consideration of children.
Simply, there is nobody to raise and prioritise the subject of children and their rights. There is nothing new about this; all it does is
re-affirm why rights are important, and in particular, the right to be heard. Or in other words, an intimate connection to the right
such as that of the right holder is key to asking the child question, influencing the process and impacting on the outcomes (the
peace agreements). The question then is how: how to ensure childrens rights in and through the process.
To an extent, the answer to this is simple: fulfilling those promises our representatives made to children over twenty-four years
ago legal obligations to which almost all jurisdictions have committed by virtue of ratification of the Convention on the Rights of
the Child, including the Syrian Arab Republic. Two are of particular relevance: ensuring the best interests of the child and assuring
respect for childrens views within decision-making affecting them.
Of course, applying these legal obligations to peace processes is complicated. However, contrary to our imaginings, peace
processes also present possibilities. First, the staged and elongated character provides space for asking the child question.
Second, the hybrid legal form ensures engagement with international law, including within decision-making about how to constitute
the space. Third, there is often an interface between political commitments to international human rights law and political
imperatives; asking the human rights question (transforming inequalities within the process and outcomes) contributes towards
advancing the peace momentum. Fourth, the creativity that propels peace processes forward as they fracture and stall opens
space for dreaming things that never were.*
Framed by over 1,000 days of conflict in Syria, the political challenges of securing a peaceful solution are immense. History tells
us, though, within (and between) these challenges there are possibilities for securing a peace inclusive of children. A possible
beginning is to appoint a legal representative to the space with a mandate to ask the child question to raise the subject of children
and their rights. Without such a structural response, there is no certainty the child question will be asked as the peace trajectory
edges falteringly forward. If the child question remains unasked, the possibility of outcomes for the children of Syria is reduced
now and into the future.
Fourteen days until Geneva II, now is the time to ensure children are part of the conversation.
*These are quotations from respectively Seamus Heaney (The Cure at Troy) and George Bernard Shaw (Back to Methuselah).
Sarah M. Field is a Human Rights Practitioner with global experience supporting the rights-based development of the rule of law, a
Post-Doctoral Researcher at the Faculty of Law, University College Cork, Ireland and the founder of a developing legal advocacy
project asking the child question.

Towards the Abolition of the Detention of Immigrant Children?


By Holly Buick | 13th February 2015

In its recent Advisory Opinion 21/14, the Inter-American Court of Human Rights (IACtHR) adopts a firm position against the
detention of children during immigration proceedings, employing a novel approach to the legality of depriving children of their of
liberty in this context. Once again, the Court has used its advisory jurisdiction to advance the protection of migrant rights beyond
existing interpretations of international law.
Among other issues, the court was invited to provide its opinion on the interpretation of the last resort principle in this context. The
principle originates from article 37 (b) of the Convention on the Rights of the Child, which provides that detention shall be used
only as a measure of last resort and for the shortest appropriate period of time.
The IACtHR reviews its case law and other sources on deprivation of liberty in a criminal context and notes the exceptional
nature of detention on remand used as a precautionary measure. The suggestion is that the deprivation of liberty in immigration
proceedings, which involve no suggestion of criminality, requires an even higher standard of exceptionality.

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This reasoning can be seen as part of a more general attempt in the Courts jurisprudence to distinguish administrative immigration
proceedings from the sphere of criminality, challenging what the Court has termed the phenomenon of the criminalization of
irregular migration. Based on the argument that administrative offences relating to immigration status may not have the same
consequences as criminal offences, the court rejects the application of the last resort principle in this context (Para. 150).
Having thrown out the last resort test, the Court proceeds to formulate its decisive statement that detention of children in
immigration proceedings exceeds the requirement of necessity and is contrary to the best interests principle, and that therefore:
States may not resort to the deprivation of liberty of children who are with their parents, or those who are unaccompanied as a
precautionary measure in immigration proceedings (Para. 160, emphasis added).
It should be noted that the IACtHRs interpretation of article 37 (b) is not in line with that of other human rights bodies. The standard
position, found in decisions of the ECHR and UN Human Rights Committee, as well as being enshrined in European immigration
legislation, is that article 37 (b) does apply to the detention of children for immigration purposes. This also appears to be the
position of the Committee on the Rights of the Child in its General Comment 10 on the juvenile justice system.
However, the IACtHR finds textual support for its position in the Committees General Comment 6: Detention cannot be justified
solely on the basis [of migratory status]. Where detention is exceptionally justified for other reasons, it shall be conducted in
accordance with article 37(b) of the Convention that requires detention to only to be used as a measure of last resort. (Para. 61,
emphasis added).
It remains to be seen whether the Courts interpretation of the Convention will be more widely accepted. Leaving aside this issue
and that of the status of the advisory opinion, what is the potential impact of rejecting the last resort principle?
The Court is right to be wary of the principle in this context. It has been unhelpful in allowing states to sidestep their obligations
even in the face of a critical mass of voices calling for abolition, based on evidence of the serious and unnecessary harm caused
to children who are detained. Research has shown that in applying the principle some states does little more than design tickbox exercises for immigration officials to make justifiable decisions to detain children or even defend their mandatory detention
policies as a legislative last resort in the face of perceived crises, in a blatant misinterpretation of the Convention. American states
such as Mexico are following European governments in making slow progress towards alternatives, paying lip service to the last
resort principle while, in fact, making widespread use of detention.
Rejecting the last resort principle in favour of a general prohibition has important implications for the alternatives debate in which
policy makers and campaigners are increasingly engaged. The IACtHRs interpretation would immediately force states to design
and implement policies that exclude the detention of children.
Holly Buick is a legal consultant and translator living in Buenos Aires. She is currently working with the Centro de Estudios Legales
y Sociales on migrants rights projects. She is a student on the MSt in International Human Rights Law, University of Oxford.

Children in an Age of Austerity: The Impact of Welfare Reform on Children in Nottingham


By Haleema Wahid | 7th July 2014 OXHRH

In its recent Advisory Opinion 21/14, the Inter-American Court of Human Rights (IACtHR) adopts a firm position against the
detention of children during immigration proceedings, employing a novel approach to the legality of depriving children of their of
liberty in this context. Once again, the Court has used its advisory jurisdiction to advance the protection of migrant rights beyond
existing interpretations of international law.
The Welfare Reform Act 2012 has introduced the biggest changes to state welfare since the establishment of the Welfare State.
Many of the changes have had a direct impact on children in families, and child poverty is also expected to rise. By 2020, it is
anticipated that a fifth of all working age parents and their children will be living in poverty.
The Campaign to End Child Poverty estimates that, in Nottingham City, almost a third (32%) of children are living in poverty and
ranks Nottingham in the top 20 of local authorities with regard to child poverty. Their 2013 figures indicate the level of child poverty
in Nottingham North is 37%, 33% in Nottingham East and 24% in Nottingham South.
The Advice Nottingham Policy & Campaigns team has produced a report to evaluate these figures and examine just how welfare
reform policies are affecting children in Nottingham. Children in an Age of Austerity brings to light the real-life cases and stories
of children in Nottingham, who are experiencing adversity as a direct result of the benefit changes. Evidential conclusions are
presented, which were derived using information received from Advice Nottinghams clients, local schools and key commentators in
the area of social policy, childrens rights and child poverty.

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The severe impact of welfare reform is starkly realised in our findings. We found that families deemed to be under-occupying their
home are experiencing financial hardship and face either increased costs or the possibility of moving home; children may have to
change schools or travel further to get to school if their families are forced to move as a result of under-occupancy. Non-resident
parents/carers face financial penalties for under-occupancy or losing the room their children use, potentially reducing parent-child
contact.
Families with children who are reliant on benefits are struggling to meet their requirement to contribute to council tax, resulting
in financial hardship and debt. Families with children who are in rent arrears face losing their homes due to possession orders.
Outside of London, Nottingham currently has one of the highest number of possession claims, where one in 63 homes is at risk of
being repossessed. Disabled parents and parents of disabled children are facing financial hardship due to changes to the awarding
of disability benefits.
Every single school that was surveyed for its perspective on welfare reform reported that welfare reform had had a negative impact
on children in schools, with four of the six indicating that the negative impact was likely to be large. Parents subject to benefit
sanctions are relying almost entirely on food banks to feed their children.
With the above in mind, we recommend that non-resident parents who have a room designated for their children should not
be subject to under-occupancy rules. Families rehoused as a result of domestic violence should not be penalised if they have
surplus rooms. Benefit sanctions should be applied more fairly. Help should be offered to all parents whose benefits have been
sanctioned. Department for Work and Pensions (DWP) staff should aim to accommodate requests to expedite decisions for clients
with dependent children. All families with children should be able to access hardship funds. And, finally, schools should be given
additional support when they identify pupils experiencing social, behavioural or emotional problems as a result of welfare reform.
It is hoped that the messages coming out of this report resonate strongly with policy-makers and members of the public. We cannot
look at welfare reform in a simplistic way; rather, we must look beneath the tip of the iceberg and anticipate the true potential for
damage to our children and young people, as well as acknowledge the damage already caused. We owe our children a childhood
free from fear and poverty. We hope that this report, at least in some part, can motivate a collective effort to achieve this.
The full report can be downloaded from the Advice Nottingham website: http://www.advicenottingham.org.uk/news.
Haleema Wahid (LLB (Hons), Kings College London) is a Legal Researcher at the University of Nottingham (School of Law).

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British Schindler and a History of Neglect of Refugee Children


By Isabelle Kadish | 20th June 2014

Sir Nicholas Winton celebrated his 105th birthday at the Czech embassy in London this past May. Guests included members of the
Winton family, friends, and members of his other family, affectionately coined Nickys Family. This family, originally composed of
669 members, has now expanded to well over 6,000 and each and every one of these individuals quite literally owes his or her
life to Winton.

In late 1938, Winton, a 29-year-old British stockbroker, travelled to Nazi-occupied Prague with a friend. Winton spent his threeweek vacation volunteering in Czech refugee camps. By the time of his departure, he had devised a rescue plan for the thousands
of Czech children affected by the Nazi occupation.
After setting up a makeshift office in the dining room of a hotel in Prague, Winton contacted the governments of nations he
thought might harbor these children. In fact, Wintons letter about the matter to President Franklin Delano Roosevelt was recently
discovered in the U.S. Department of State Records. Dated May 16, 1939, Winton wrote to President Roosevelt: In Bohemia and
Slovakia today, there are thousands of children, some homeless and starving, mostly without nationality, but they certainly all have
one thing in common: there is no future, if they are forced to remain where they are.
Winton never received a reply from President Roosevelt, nor any member of the White House or State Department. Rather, he
eventually received a letter from a mid-level political officer at the American Embassy in London stating that there was nothing to be
done.
What Winton may not have realized were the serious obstacles to any sort of relaxation of United States immigration quotas before
and during the Second World War. While some Jews were admitted into the U.S. from 1938-1941 under the preexisting German-

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Austrian quota, the U.S. did not pursue an organized and specific rescue policy for Jewish victims of Nazi Germany until early
1944.
In the end, only Britain and Sweden granted permission for the children to be transported to their countries (though ultimately,
they were only transported to Britain). Winton, however, was forced to work under very strict conditions. In order to transport just
one Czech child to safety, he needed a British family willing and able to adopt and 50 many Czech refugee families could not
even afford a single meal to be paid to the Home Office on account of each child. Nonetheless, Winton intended the rescue of
thousands of children a mass evacuation from Czechoslovakia to Great Britain.
Permission in hand, the rescue of these Czech children was then entirely up to Winton and his made-up organization, The British
Committee for Refugees from Czechoslovakia, Childrens Section, consisting of his mother, his secretary and a few volunteers.
Eight trains of Nickys children successfully reached Britain through Germany and France. The final, ninth train containing 250
children never reached Britain, as the war broke out on the eve of its departure. Winton still managed to save 669 children. The
vast majority of their parents perished in the Holocaust.
Winton was knighted by Queen Elizabeth in 2002, and today there is a growing movement to award him the Nobel Peace Prize,
with already over 250,000 signatures worldwide.
While Sir Winton proves an inspiring figure of Holocaust resistance, his story and the recent discovery of his plea to President
Roosevelt reveals a history of all-too-static immigration and refugee laws in first world countries. Since the Second World War, and
especially in the 1990s, refugee asylum has emerged as a major political problem throughout nations in Western Europe, including
the UK. There are over 60,000 refugee children residing in the UK and, while offered a safer future, by the time they reach
secondary school, there is a substantial learning gap between UK schoolchildren and refugee children.
Today, President Obama has continued Roosevelts harsh legacy, deporting more immigrants than any other president in the
history of the U.S. amounting to nearly 2 million individuals. This carries a high price for families across the U.S.: one quarter
of all deportees are separated from their U.S. citizen children, and unlike Nickys Family, these children are rendered absolutely
parentless.
Please learn more about Sir Nicholas Wintons fight for refugee children and the documentary, Nickys Family, at
http://www.menemshafilms.com/nickys-family.
Isabelle Kadish is a student at the University of Pennsylvania pursuing a Bachelors degree in English Literature and Hispanic
Studies.

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Equality

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208

Introduction Meghan Campbell and Karl Laird

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The Equality Agenda in 2015: Part I- The Constitutional Issues

211

The Equality Agenda in 2015: Part II- Access to Justice

212

The Equality Agenda in 2015: Part III- Advancing Equality

213

Rights Protection in 2014: A Review of the Indian Supreme Court

214

Public Consultation on the Overhaul of Hong Kong Anti-Discrimination Laws

216

Does Affirmative Action Create Unfair Advantage?

217

Everyday Utopias and Challenging Preconceptions


Women and Gender

218

International Womens Day: Women and Girls Struggle for Equality in the Courts

219

Inspiring Change Through Law for International Womens Day

220

The Bludgeon Nominees in the Gender Justice Uncovered Awards 2015

221

Winning Decisions in the 2014 Gender Justice Uncovered Awards

222

How can Judges be Held Accountable?

223

Rethink needed as new Australian High Court Justice appointment seems to maintain gender
imbalance

224

Judicial Appointment of Women on the Decline in Canada and Australia

225

Gender and the Judiciary: Bosnia and Herzegovina

226

Belgian Parliament Introduces Sex Quota in Constitutional Court

228

Revisiting Mass Sterilisation in India Population Management or Menace?

229

The Rhodes Project: Celebrating Many Versions of What Women Can Be

230

Menopausal Women Fear Discrimination in the Workplace

231

Pregnancy Discrimination in the Australian Workplace

232

Recognising Maternity Leave as a Human Rights Obligation

233

Improving the Law for Pregnant Women and Working Parents

234

The Family Agenda: Promoting Traditional Values in the Human Rights Council

236

Burwell v Hobby Lobby a narrow decision?

237

Breaking the Cycle of Gender Inequality

238

Thematic Report Economic and Social Life with a Focus on Economic Crisis

239

Girls with Books, Better Laws, Pave the Way Ahead

241

The Uneasy Decision in A and B v Secretary of State for Health

242

Northern Irelands Human Rights Commission Granted Leave for Judicial Review to Challenge the
Countrys Near-Blanket Ban on Abortion

243

Stereotyping as Direct Discrimination?

244

What Has the European Union Ever Done for Women?

245

Older Homeless Women in Australia

246

(In)justice Served? Lori Douglas Case Leaves More Questions than Answers for Canadians

247

GamerGate and Gendered Hate Speech

248

Harassment Against Women Goes Online: the Problem of Revenge Porn

249

UK Efforts to Criminalize Revenge Porn: Not a Scandal, but a Sex Crime

250

CEDAW Issues a Historic Ruling in a Gender Violence Case

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Mega Event Tactics: Brazils Sex Industry During the World Cup 2014

253

Male Rape in Armed Conflicts: Why We Should Talk About It

254

Rape and the Failure of the Criminal Justice System

254

Sexual Violence in Modern Myanmar

255

Are Womens Rights Really Human Rights?

256

Omnipresent in the EU: Violence Against Women

258

The Women Empowerment and Gender Equality Bill: Can It Live Up to Its Name?
Race and Ethnicity

259

Concerns about Greece from the European Commission against Racism and Intolerance

260

Recognising Travellers Needs: The Courts Begin to Move

261

A House Divided: Grappling with Affirmative Action in South Africa

262

Brazils Laws on Quotas and the Road to Racial Equality

263

Schuette v BAMN: a Need to Rethink Equal Protection

265

The New Barbarians: Bulgarians and Romanians at the Gate!


Disability

266

Mainstreaming Disability in Development: The need for a Disability-Inclusive Post-2015


Development Agenda

266

Indian Lip Service to the UNCRPD: Examining the Persons with Disabilities Bill 2014

268

The Problem of Progressive Realization Protecting the Rights of the Disabled in Jamaica

269

A Successful First Instance Challenge to Bedroom Tax

270

Schuette: The Latest in the Affirmative Action Saga

271

Nigerian Standup Comedians and Differently Abled Persons from a Human Rights
Poverty

272

First Lady of Rwanda Women and Poverty: A Human Rights Approach

273

Equality Interrupted: The Rajasthan Panchayati Raj Act, 2nd Amendment, Ordinance, 2014 and the
Selective Disqualification of Candidates

274

P v Cheshire West and Chester Council: Shaping Deprivations of Liberty

276

Cheshire West and the Repugnant Conclusion


LGBTIQA

276

Searching for the T in LGBT Advocacy

278

Gays: a Prohibited Class in CARICOM?

279

Ugandas Anti-Homosexuality Law and Our Cultural Wars

280

From Torment to Tolerance and Acceptance to the Everyday: The Course of LGBT Equality in the
UK

281

Scotlands Gay Rights Journey

283

Naz and Reclaiming Counter-Majoritarianism

284

Over to you, Parliament The Significance of the Australian High Courts Judgment on Same-Sex
Marriage

285

Reviewing Koushal: Counting Down the Errors Apparent on the Face of the Record

286

Surrogacy, Same-Sex Couples and the Privatisation of Regulation in Israel

287

What Next for LGBT Equality?

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Hmlinen v Finland: The Transgender Divorce Requirement in Strasbourg

290

Curing the Koushal Malady

290

Indias Third Gender and The Kaushal Problem


Indigenous Rights and Human Rights

292

The Right to Prior Consultation of Indigenous Peoples in the Americas (Part I)

293

The Right to Prior Consultation of Indigenous Peoples in the Americas (Part II)

294

Establishing Aboriginal Title in Canada: Tsilhqotin Nation v British Columbia

295

Indigenous Ecuadorians Bring Protracted Legal Battle Before the Supreme Court of Canada

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Introduction

By Dr Meghan Campbell and Karl Laird


Equality has been described as the most challenging right but it is also one of the key rights in transforming institutions and
societies to ensure that all people are empowered to create and enjoy a meaningful life. Equality is a universally recognised
right that is often entrenched in national constitutions and a foundational value of many national and international legal orders.
While there may be broad agreement on the value of achieving equality, the posts collected in this chapter emphasise that there
continues to be deep disagreement on how equality should be conceptualised and how national and international laws and policies
can further this universal aim.
After commencing with a collection of posts that focus upon some of the overarching questions that inform the current equality
agenda namely affirmative action, new approaches to implementing and monitoring equality outside of the court structure and the
impacts of austerity measures the chapter is then sub-grouped on traditional and emerging status based grounds of inequality:
women and gender; race and ethnicity; disability; poverty; LGBTIQA; and indigenous and human rights.
Both the victories and continuing struggles for gender equality best exemplify the continued confusion on the substantive meaning
of equality. The judiciary has been one site where gender equality is proving to remain elusive. Throughout the common-law world,
and in many civil jurisdictions, the composition of the judiciary remains overwhelming male, notwithstanding the increasing number
of women entering law school and practicing in the legal profession. Indeed, there still remains deep resistance to even recognising
the gender imbalance in the judiciary. Kim Rubenstein forcefully responds to that critique, stating: it is difficult to dispute that we
already have a system of affirmative action in favour of men. Do men really merit this outcome or is the system, by unspoken
assumption, looking after them? (Rethink needed as new Australian High Court Justice appointment seems to maintain gender
imbalance p 223). With the urgency to have women on the bench and the failed past attempts to achieve this, Belgium just recently
took an important step forward and passed legislation requiring a gender quota for the Constitutional Court (Belgian Parliament
Introduces Sex Quota in Constitutional Court p 226).
However, when it comes to realising gender equality in relation to reproductive issues, the response has been decidedly mixed.
On the positive side, the Convention on the Elimination of All Forms of Discrimination Against Women Committee held that failing
to provide maternity benefits is a direct form if gender based discrimination (Recognising Maternity Leave as a Human Rights
Obligation p 232). This is an important recognition as it ensures that women are not financially punished for having children. In
Northern Ireland, the countrys strict laws on abortion were challenged on the grounds that it discriminated against women living
there who had to incur the cost of travelling to other parts of the UK where the procedure is legal and available. The High Court
held that this increased difficulty faced by women in Northern Ireland did not amount to discrimination under Article 14 of the
ECHR. Beth Grossman observes that it seems fundamentally unfair that a reproductive right long established in and enjoyed
by women in every other country of the United Kingdom be logistically and financially restricted for those in Northern Ireland on
relatively technical legal grounds (The Uneasy Decision in A and B v Secretary of State p 241). Richard Martin explains that due
to several other high profile cases, though, the Department of Justice in Northern Ireland has engaged in a public consultation on
reforming the criminal law on abortion to consider allowing abortion in cases of a fatal fetal abnormality or where pregnancy is the
result of rape (Northern Irelands Human Rights Commission Granted Leave for Judicial Review to Challenge the Countrys NearBlanket Ban on Abortion p 242). While this does not guarantee increased access to reproductive services, including the voice and
participation of Northern Irish women in the design of the law is crucial.
India has also seen some troubling developments in relation to gender equality and reproduction as, women voluntarily opt
for undergoing sterilisation as a trade-off for cash and welfare incentives. However, many women are trading off their lives
(Revisiting Mass Sterilisation in India-Population Management or Menace? p 228). The experience of these women highlights the
importance of addressing in tandem gender and socio-economic disadvantage. Notwithstanding women in Australia having enjoyed
recognition and protection against pregnancy discrimination for decades, a recent survey revealed that 49 per cent of mothers...
had experienced discrimination in the workplace. Disturbingly, only 13 per cent of those women who experienced discrimination
sought legal advice (Pregnancy Discrimination in the Workplace p 231). In a landmark decision in Burwell v Hobby Lobby, the
US Supreme Court decided that closely held corporations are not required to facilitate access to contraception on the basis of
the corporations religious beliefs. Justice Ginsburg points out that contraceptive coverage is essential to womens health and
reproductive freedom and the judgment jeopardises both of these interests (Burwell v Hobby Lobby p 236).
Contributions to this chapter also highlight the troubling issues of gender equality, amplified by online spaces in the digital age.
Thiago Alves Pinto highlights that the same problems of victim blaming, stalking and gender discrimination are taking a new shape
in space which allows for more anonymity, thus accountability (GamerGate and Gendered Hate Speech p 247). Ann Olivarius
highlights the weakness of the current criminal and civil responses to revenge porn (Harassment Against Women Goes Online: The
Problem of Revenge Porn p 248). Laura Hilly asks some essential questions in response to gender discrimination on the internet
to ensure legal responses do not further reinforce the shaming of female sexuality and the stigmatisation of women who are not
distressed or have no desire to apologise for taking private photographs (UK Efforts to Criminalise Revenge Porn: Not a Scandal,
but a Sex Crime p 249).

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Similar to gender equality, this year has seen promising developments in the path towards full equality for the LGBT people, but
also some distributing trends. Importantly, there has been some welcome attention paid to the rights of transgender persons
in particular, who often seem to be marginalised in the LGB discourse. Such marginalisation is highlighted by the fact that the
prominent UK LGB charity Stonewall does not advocate on behalf of transgender persons. As Peter Dunne points out, the LGB
community has at best neglected the transgender community, at worst it has compromised gender identity rights to promote
greater equality for gay men and lesbians (Searching for the T in LGBT Advocacy Peter Dunne by Peter Dunne p 276). Last year
debates surrounding same-sex marriage dominated the LGBT dialogue in the United States in 2015 and the Supreme Court looks
set to decide this issue once and for all as it hears oral argument in the case of Obergefell v Hodges as this publication goes to
print (What next for LGBT equality? p 287).However, in many other countries marriage is an institution that gays and lesbians in
many other countries could only ever dream of joining, given the prevalence of laws criminalising same-sex intercourse. Ugandas
recently enacted anti-homosexuality law is but one example of this (Ugandas anti-homosexuality law and our cultural wars p
279). The fact that the Constitutional Court of Uganda invalidated the legislation demonstrates that gays and lesbians still require
insulation from majoritarian forces in many jurisdictions around the world. That is not to say, though, that the judiciary will always
expand the rights afforded to the LGBT community. This much is evident from the fact the Supreme Court of India re-criminalized
homosexuality four years after it was de-criminalized by the Delhi High Court (Naz and Reclaiming Counter-Majoritarianis p 283).
As Jonathan Cooper discusses, gays and lesbian equality in the UK has advanced a great deal from when the Wolfenden
Committee recommended the de-criminalisation of homosexuality in 1957 (From Torment to Tolerance and Acceptance to
the Everyday: The Course of LGBT Equality in the UK by Jonathan Cooper p 280). This post demonstrates, however, that it
is important not to become complacent and too self-congratulatory, given that many LGBT people around the world are still
persecuted on a daily basis.
It worth touching briefly on the remaining status based grounds for equality. There has been some important decisions and
legislation on racial equality. Helen Mountfield observes that the judgment in Moore & Coates v Secretary of State for Communities
and Local Government (Equality & Human Rights Commission intervening) is important because it counters the suggestion that
singling out applications for planning permission by gypsies and travelers for scrutiny is not discriminatory because they are asking
for something different from the settled community rather than symmetrical equal treatment. (Recognising Travellers Needs: The
Courts Begin to Move p 260). In both the USA and South Africa there have been crucial judgments in the development of raced
based affirmative action. In Schuette v BAMN, Justice Kennedy dodged the ban on racial preference whereas Justice Sotoymayor
argued that the Michigan ban was especially burdens minorities by requiring them to amend the state constitution in order to
pursue a policy that is in their interest (Schuette v BAMN: A Need to Rethink Equal Protection p 263). There was a similar split
within the South African judiciary in South African Police Services v Solidarity obo Barnard on the standard of review for affirmative
action cases. Andrew Wheelhouse reflects that although the push for a heightened standard review has been defeated, it will be
interesting to see if the dignity analysis is taken up in subsequent cases (A House Divided: Grappling with Affirmative Action in
South Africa p 261). This years blog posts also highlight the importance of transforming the conceptualization of disability from a
medical issue to a social issue that focuses on the existent social barriers (Mainstreaming Disability in Development: The Need for
a Disability-Inclusive Post-2015 Development Agenda p 266).
It is this theme of wary advancement, simultaneously acknowledging successes as well as the need for vigilance on a number of
issues, that emerges from an analysis of this years Blog posts on equality. Although progress been made and this ought to be
celebrated, there is much more to be done before those who have historically been marginalized by society achieve the equality
necessary to create and enjoy a meaningful life.
Dr Meghan Campbell is the Weston Junior Research Fellow, New College, Oxford University and Deputy Director of the OxHRH.
Karl Laird is a Lecturer in Law at St Edmund Hall, Oxford.

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The Equality Agenda in 2015: Part I The Constitutional Issues


By Bob Hepple | 5th March 2015

This will be a year of political and constitutional turbulence for equality law. What changes can we expect after the general election?
Professor Sir Bob Hepple QC examines some of the key issues and makes proposals for the priorities of an incoming government.
This post reflects on the position of equality law and the protection of citizens in light of the increasingly precarious relationship
between the UK and the European Court of Human Rights and the EU, as well as its devolved regions.

So far, the political parties have said little specific about their intentions in regard to equality law. The Conservatives threat
to withdraw from the European Convention on Human Rights (ECHR), and their undertaking to hold a referendum on future
membership of the EU, could fundamentally affect the constitutional basis of our equality law. One of the main purposes of the
Equality Act is to make our domestic law consistent with Britains international and European treaty obligations.
The courts interpret the Act so as to give effect to those obligations. David Cameron and his colleagues have announced the
intention to end the ability of the European Court of Human Rights to force the UK to change the law, and to allow only the most
serious cases to proceed. Dominic Grieve, the former Conservative Attorney-General, has said that this move would be damaging
for the UK and for human rights across Europe, and warned that non-compliance with the European Convention on Human Rights
would call into question the devolution settlements for Scotland, Wales and Northern Ireland, which all enshrined convention rights.
The Human Rights Act already preserves the sovereignty of parliament to refuse to change the law, although if parliament does
so the UK may be in breach of its international obligations. Unless the UK withdraws from the Council of Europe and the EU
altogether, victims of discrimination and other breaches of convention rights will still be able to go to the Strasbourg Court, putting
us back to the pre-2000 position. There have been several discrimination cases where the ECHR has led to pioneering decisions
for example on the rights of gay people and transsexuals, the right to manifest religious belief and dismissal on grounds of political
opinion. If implemented, the proposals will create confusion and uncertainty in an already complex area of law. If a British Bill of
Rights replaces the ECHR it is unclear what it will say about the principle of equality as a fundamental human right.
There appears to be no likelihood of Cameron succeeding in negotiating any changes to the EU Treaty which would remove or
modify the principle of non-discrimination against EU nationals. If he makes this amendment a condition for continued membership
of the EU, precipitating a Yes vote for withdrawal, the UK will lose one of the major pillars of domestic equality law. Without
the EU, British law would not have the principle of equal pay for men and women for work of equal value, nor laws against
discrimination because of age, sexual orientation and religion, nor equal treatment of part-time, fixed-term and agency workers. The
case law of the Court of Justice of the EU over the past 40 years has vastly expanded the scope of our domestic law. Withdrawal
from the EU would be a major setback for the advancement of equal rights in Britain.

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Another constitutional issue which will loom large, is the devolution of powers to Scotland. The report of the Smith Commission
(published on 27 November 2014) envisages that the Equality Act will remain a reserved matter (for the UK Parliament), but
goes on to say that the powers of the Scottish Parliament will include, but not be limited to, the introduction of gender quotas in
respect of public bodies and that the Scottish Parliament can legislate in relation to socioeconomic rights in devolved areas. It
appears from paras. 63 and 64 of the report that there will be devolved legislative powers over the operation of tribunals, such as
in respect of rules and fees, even though substantive discrimination law remains reserved. Scottish and Welsh Regulations on
the enforcement of the public sector equality duty (PSED) already go further than those applicable to English public authorities.
We face the not unwelcome prospect of regulatory competition, which may encourage England to follow the more progressive
practices in the other home countries. However, significant differences between these countries could be confusing and
burdensome for UK-wide companies.
This post is based on Sir Hepples article in the Equal Opportunities Review (Issue 255, Feb. 2015) and presentation at the TUC/
EOR Discrimination Law 2015 conference on 23 January 2015.
Professor Sir Bob Hepple QC is the immediate past chair of the Equal Rights Trust and one of architects of the Equality Act 2010.

The Equality Agenda in 2015: Part II Access to Justice


By Bob Hepple | 9th March 2015

In this post, Professor Sir Bob Hepples Equality Agenda in 2015 focuses on the impact of the recent introduction of employment
tribunal fees. What might be done to reduce the cost of tribunals to the taxpayer while still ensuring access to justice?
2015 marks the 800th anniversary of Magna Carta, so it is not inappropriate to recall clause 40 (still on the statute book), which
states: To no one will we sell, to no one will we refuse or delay, right or justice. The imposition of employment tribunal fees
since 29 July 2013 has proved to be a devastating obstacle to access to justice contrary to the spirit of Magna Carta, denying
justice to thousands of victims of discrimination who cannot afford the fees and have also been deprived of free legal advice and
representation.
Evidence gathered by the Trade Union Congress (TUC), Citizens Advice in England and Scotland, the Law Society of Scotland
and researchers at Bristol and Strathclyde universities show that people with genuine claims are being prevented from lodging
them because of inability to pay. All types of discrimination claim, for which a fee of 1,200 is now payable by a single claimant, fell
by around 80%, and sex discrimination claims by 91%, in the period April to June 2014 in comparison with the previous year. The
latest statistics (July to September 2014) show a slight increase in sex discrimination claims but this is still more than 80% below
pre-fees level.
Hopes that the courts would strike down the Fees Regulations have now been dashed on two occasions. In February 2014 in R
(Unison) v Lord Chancellor (EHRC intervening) [2014] EWHC 218 (Admin), Moses LJ and Irwin J held that the level of fees did not
breach EU principles of effectiveness or equivalence, nor was there a breach of the PSED. They concluded that the application was
premature because there was insufficient evidence of the disparate impact on individuals of a protected class. A second application
relied solely on a breach of the principle of effectiveness and of unjustified indirect discrimination. On 17 December 2014, this was
dismissed by Elias LJ and Foskett J (Unison No.2, case CO/4440/2014). The Court indicated it could not evaluate the arguments
without reliable evidence as to the impact on particular individuals; and, in any event, the Governments aims in setting up the fees
scheme were legitimate and proportionate.
The Government is currently reviewing its fees policy and it can be expected that if re-elected to office, the Conservative Party
will maintain a fee-charging system, possibly with some modifications, for example through an expansion of the fees remission
arrangements, if significant disparate impact on particular groups is shown. The Labour Shadow Business Minister, Chuka Umunna
MP, told the TUC conference in September 2014 that a Labour Government would reform ETs and put in place a new system that
ensures that workers have access to justice.
What reforms are possible that would simultaneously reduce the cost of tribunals to the taxpayer and ensure access to justice?
The objective of reducing unmeritorious claims is already met by various rules on striking out, deposits and costs. Paradoxically,
s.138 of the Equality Act (based on earlier legislation) was repealed in 2013. This helped to avoid unnecessary litigation by allowing
a person who thought there may have been unlawful discrimination to send a questionnaire on a prescribed form to a potential
respondent, and thus could avoid litigation where an innocent explanation was given. The deletion by the Deregulation Bill 201415
of the power of ETs under s.124 Equality Act to make wider recommendations has also removed an incentive for employers to take
remedial action that would prevent future litigation. A Government that is serious about reducing litigation would restore ss.124 and
138.
Greater use of preliminary hearings is another way of reducing lengthy and expensive hearings. There has been a considerable

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increase in the number of such hearings. No further fees are charged for these. The former President of Employment Tribunals,
David Latham, has pointed out that these hearings can resolve many issues. It will be necessary for an incoming Government to
evaluate the impact of the new system of early conciliation. In addition, the arbitration alternative under the auspices of Acas
(introduced in 1998 for unfair dismissal but not utilised) should be re-examined, with a view to adapting it for discrimination cases.
The advantages of such an alternative could be speed, informality, an investigative approach and cheapness all aims of the
original tribunal system.
This was based on Professor Sir Hepples article in the Equal Opportunities Review (Issue 255, Feb. 2015) and presentation at the
TUC/EOR Discrimination Law 2015 conference.
Professor Sir Bob Hepple QC is immediate past chair of the Equal Rights Trust and one of architects of the Equality Act 2010.

The Equality Agenda in 2015: Part III Advancing Equality


By Professor Sir Bob Hepple QC | 12 March 2015

In a climate of public spending cuts and with political priorities in areas such as the NHS, there are two important measures for
advancing equality that would not involve major public expenditure.
1. Equality representatives (ERs)
If an incoming Government enacts only one new piece of equality legislation it should be to strengthen the role of equality
representatives (ERs) at workplaces who would be involved in equality audits and in drawing up and enforcing employment and
pay equity plans. One opportunity for this kind of engagement will arise when an employment tribunal has ordered a mandatory pay
audit, under s.98 of the Enterprise and Regulatory Reform Act 2013, following an equal pay breach.

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There is a ready-to-hand model in the Safety Committees and Safety Representatives Regulations 1977 and the Health and Safety
(Consultation with Employees) Regulations 1996. A regulation for ERs could provide that if an employer recognises a union it must
consult with union-appointed ERs on equality matters, and provide them with paid time-off and training. The regulations could go
further than the health and safety regulations by requiring consultation with other representatives if there is no recognised union.
This needs to be supplemented by bringing into force s.78 Equality Act, which enables a Minister to make regulations requiring
private and voluntary sector employers with at least 250 employees to publish information relating to differences in pay between
their male and female employees. The Coalition Government did not implement this power, arguing that its voluntary Think,
Act, Report (TAR) programme was a sufficient encouragement to employers to be transparent about pay for men and women.
However, TAR has failed to deliver the promised target of getting private and voluntary sector employers to be more transparent.
2. Strengthening the public sector equality duty (PSED)
In the period of austerity in which the PSED has functioned since 2008, it has played an important role in delaying or stopping cuts
in public services where it has been possible to show that the authorities failed to have due regard to the impact on one or more
protected groups. The effective enforcement of the duty by judicial review (JR) will be seriously hampered if the Criminal Justice
and Courts Bill 201415 is enacted in its present form (at the time of writing this is a matter of ping-pong between Lords and
Commons).
The Bill would require the High Court or Upper Tribunal to refuse permission for JR or withhold a remedy if they think it highly
likely that the outcome for the applicant would not have been substantially different had the conduct of the public authority not
occurred. The Bill also establishes a presumption that interveners in a JR would, unless there are exceptional circumstances, have
to pay the costs incurred by another party as a result of the intervention. This will have a deterrent effect on interventions by the
cash-strapped EHRC and other organisations like the Trade Union Congress. The EHRCs interventions, such as in the Bracking
case [2014] EqLR 60, have had a major impact on the outcomes of JR. There are also provisions in the Bill on costs-capping
orders, which risk restricting access to the courts. These changes to JR, if enacted before the election, should be reviewed by an
incoming Government.
The next review of the PSED is due to take place in 2016. Among the issues that need to be considered are the extent of the duty.
The present due regard standard means that the focus of JR applications has had to be on procedures a tick-box approach
rather than substance. An incoming Government should remedy this by reformulating the duty so as to oblige public authorities to
eliminate discrimination and to take proportionate steps towards the advancement of equality. This could encourage public bodies
to institute real changes, which would be judged by the EHRC and the courts on the basis of the proportionality principle.
This is closely linked to the issue of engagement of stakeholders and ERs (above). The all-important function of the public duty is to
involve stakeholders in formulating and implementing equality plans. The current regulations for England (unlike those for Scotland
and Wales) do not require the authority to publish details of their engagement with stakeholders. They should oblige the authority to
take reasonable steps to involve stakeholders.
This post is based on Sir Hepples article in the Equal Opportunities Review (Issue 255, Feb. 2015) and presentation at the TUC/
EOR Discrimination Law 2015 conference on 23 January 2015.
Professor Sir Bob Hepple QC is the immediate past chair of the Equal Rights Trust and one of architects of the Equality Act 2010.

Rights Protection in 2014: A Review of the Indian Supreme Court


By Jayna Kothari | 29th January 2015

2014 was an interesting year for protection of fundamental rights by the Indian Supreme Court. We undertook an unprecedented
rights review at the Centre for Law and Policy Research.
One of the strongest areas of protection in 2014 has been around equality on the basis of sex and gender. 2014 saw the Supreme
Court decide two big cases where it overruled discrimination based on sex. One of them was National Legal Services Authority
vs. Union of India and Ors. (NALSA) Writ Petition Civil No.604 of 2013 where the National Legal Services Authority initiated a
public interest litigation to remedy the failure of state law and policy to recognize and protect transgendered persons. The Court
established that the anti-discrimination provisions under Articles 14 to 16 included the right not to be discriminated against on the
grounds of sexual orientation and gender, and that the word sex in Articles 15 and 16 of the constitution also included other selfidentified gender identities. The Court held in NALSA that all the states laws and policies must let individuals to decide their own
gender and record this as male, female or third gender.

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Another important judgment on sex discrimination was Charu Khurana and Ors v. Union of India and Ors. Writ Petition Civil. No.78
Of 2013. Here, a female Petitioner was refused membership as a make-up artist the Cine Costume Make-up Artists and Hair
Dressers Association, whose rules only allowed men to be make-up artists. The Court held that the Petitioner could not be denied
membership, as discrimination on grounds of gender was a clear violation of her right to equality and a denial of her capacity
to earn her livelihood which affects her individual dignity. Interestingly, the Court applied this requirement of non-discrimination
on the Association, a private entity, and held that any clause in the bylaws of a trade union calling itself an Association cannot
violate Articles 14 and 21. This opinion allows for the horizontal application of fundamental rights and breaks away from its earlier
restrictive application in Zoroastrian Co-operative Housing Society Ltd Case No. Appeal (civil) 1551 of 2000.
Union of India vs. Atul Shukla Civil Appeals No. 4717-4719 of 2013 was significant as the first Supreme Court ruling on age
discrimination. The Indian Constitution does not expressly prohibit discrimination based on age under Articles 15 and 16. The
case challenged the terms of service for officers in the Indian Air Force, prescribing different ages of retirement for different officers.
The Court held that classification only on the basis of age resulting from a deliberate decision to create a younger workforce was
a violation of Article 14 guaranteeing equality. Though the Court did not recognise age to be a prohibited ground of discrimination
under Articles 15 and 16, this case will intensify the Courts scrutiny of age-related discrimination.
Finally there were some important decisions around the death penalty which, while not challenging the death penalty, laid down
important law relating to procedural administration of death row and mercy petitions. In Shatrughan Chauhan & Anr. vs. Union
of India and Ors 1 Writ Petition (Criminal) No. 55 Of 2013the Court commuted the death sentences of 15 convicts whose mercy
petitions had been rejected by the President on the ground of mental illness. The Court laid down guidelines for commutation
and evaluated various supervening circumstances: prolonged delay in execution of a death sentence, insanity, mental illness/
schizophrenia of the convict. The Court stressed that no exhaustive guidelines or outer time limits could be prescribed for disposing
mercy petitions and the analysis must proceed on a case-by-case basis, entailing that the court must step in when the delays were
unreasonable, unexplained and exorbitant. More procedural protections came through in Mohd. Arif and Ors. v. The Registrar,
Supreme Court of India and Ors Writ Petition (Criminal) 77 Of 2014. A Constitution Bench, by a 4:1 decision, held that judicial
review of death penalty cases must be heard in open court by a bench of at least three judges rather than just by circulation,
justifying that the right to life could be deprived only upon following a procedure that was just, fair and reasonable.
This Review throws up interesting conclusions. First, the year 2014 has shown that the Supreme Court is indeed a site for the
campaign of sex equality. The progressive NALSA decision is in stark distinction to the 2013 Koushal judgment Civil Appeal
No.10972 of 2013where the Court refused to overrule the criminalization of homosexuality. Secondly, the Court is making positive
developments in unexplored areas. age discrimination, horizontality of fundamental rights and rights of persons with mental
disability on death rowpersons with mental disabilities in the context of the death penalty. What is disappointing is the lack of
any strong decisions on social rights. Besides the landmark Pramati judgment Writ Petition (Civil) No. 416 of 2012 affirming the
constitutionality of the Right of Children to Free and Compulsory Education Act 2009, we see no judgment on social rights like
housing, health or livelihood.
Jayna Kothari is a partner at Ashira Law, a law firm in Bangalore and is practicing in the High Court of Karnataka. She is one of the
founding members of the Centre for Law & Policy Research, an organisation which aims to maintain and promote legal education
and public policy research and litigation.

Public Consultation on the Overhaul of Hong Kong Anti-Discrimination Laws


By Sebastian Ko | 26th September 2014

On 7 October 2014, the Hong Kong Equal Opportunities Commission (EOC) will conclude its inaugural review of the antidiscrimination legislation (the Consultation) in the Special Administrative Region of China (the SAR). The Consultation
represents an ambitious project to align domestic laws with Hong Kongs constitutional guarantees of equality and obligations
under international covenants and with contemporary social values. Simplification, modernisation and harmonisation of laws and
mainstreaming of equality principles are the cornerstones of the Consultation.
Among other issues, the EOC has invited comments on the following issues:

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whether the existing anti-discrimination laws, namely, the Sex Discrimination Ordinance, the Disability Discrimination
Ordinance (DDO), the Family Status Discrimination Ordinance and the Race Discrimination Ordinance (RDO), should be
unified in one legislation;
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and potential pregnancy;


whether a duty of reasonable accommodation should be imposed on employers, schools, owners and managers of premises
and other service providers (currently, there is a broad defence of unjustifiable hardship, as defined in the DDO, s 4);
whether the burden of proof should shift to the respondent to prove no discrimination once the claimant establishes that facts
from which discrimination can be inferred;
whether protections against harassment should apply uniformly to all protected grounds; and
whether a duty on public authorities to promote equality across all the protected attributes should be introduced.

Current laws protect people from discrimination, harassment and victimisation on the grounds of their sex, pregnancy, marital
status, disability, family status and race. The laws apply to the contexts of employment, education, retail consumption and
government services. However, the EOC has identified numerous gaps and limitations in the existing anti-discrimination framework
as well as discrepancies in the way the four Ordinances protect the relevant grounds. For example, the RDO does not cover
government bodies, unlike the other three Ordinances. The law does not protect a person from sexual harassment by another in
a common workplace, where there is no employment relationship between them. Indeed, the EOCs public consultation document
contains a long list of issues for legislative spring-cleaning.
The Consultation is motivated by the urgent need to ease certain social frictions that have flared in Hong Kongs rapidly changing
demographics. The expansion of the racial grounds is meant to address the growing prejudice experienced by new immigrants and
visitors from Mainland China. Discrimination between ethnic Chinese Hong Kong-ers and ethnic Chinese Mainlanders, for example,
is not unlawful in the RDO. The scope of the Consultation, however, excludes examination of the potential grounds of sexual
orientation, gender identity, intersex status and age. It will be difficult for the Consultation to thoroughly address the reform of family
and marital status protections in light of such exclusions. The EOC has indicated that it will consider reviewing these grounds in
separate consultations.
The EOC seeks to modernise Hong Kong laws by drawing on international practices, and has made preliminary recommendations
based on the laws of Australia and England and Wales. While these recommendations are sensible, whether the pending law
reform will garner public support depends on how different interests are balanced by the defences, exemptions and procedural
safeguards relevant proposals have yet to be disclosed. Moreover, a major concern for Hong Kong-ers is that legal reform could
lead to a Pyrrhic victory for equality when underlying tensions are left unresolved, if not aggravated. Anti-Mainlander sentiments
have been attributed to ineffective immigration policies vis--vis Mainland arrivals, which Beijing has overriding influence over due
to Hong Kongs status as a SAR. This throws a unique spanner in the works for adopting suggestions based on foreign laws.
The outcome of the Consultation is expected to have enormous impact on equality and human rights protection in Hong Kong. The
EOC will submit its findings to the Hong Kong government in mid-2015.
Sebastian Ko completed the BCL at the University of Oxford. He is a practising lawyer in Hong Kong, and is the East Asia Regional
Correspondent of the Oxford Human Rights Hub.

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Does Affirmative Action Create Unfair Advantage?


By Dimitrina Petrova | 18th June 2014

Affirmative action, also known as positive action, is a controversial issue in many contexts.

For example, Black economic empowerment and employment equity measures have come under attack in South Africa; racial
criteria in university admissions in the USA have been contested in the courts; constitutional provisions in Malaysia favouring
Bumiputra are said to have outlived their legitimacy and to be creating unfair privileges; and in Britain, the public sector equality
duty is said to favour some disadvantaged groups at the expense of others.
As with many expressions that dwell in both political and legal quarters, have different meanings in different contexts and whose
meanings have changed over time, affirmative action is controversial at two levels. At the more superficial level, disagreement is
due to the ambiguity of the term: once a strict definition is adopted, disagreement about the meaning of words can disappear. At
a deeper level, having agreed the meaning of words, people can then truly disagree about affirmative action because they have
differing notions of fairness and justice, and thus different political attitudes, whether conscious or not.
But it is safe to assume that whatever our political values, we all oppose the creation of unfair advantage: this is our common
ground. From here, we will try to identify principles and criteria for the legitimate use of affirmative action. EU law allows special
measures providing for specific advantages in order to make it easier for the underrepresented [group] to pursue a vocational
activity or to prevent or compensate for disadvantages in professional careers. But are those aims sufficient? It would be
interesting to see if experts could agree an over-arching purposive principle, for example, that affirmative action is justified so long
as it has significant positive results in advancing equality?
Provided we agree at this very general level, the question is how such a broad principle can be translated into specific policy
guidance. When considering various special measures, such as quotas, reserved places, targets, preferences for a limited period,
etc., how do we ensure that they are proportionate to the legitimate aim of advancing equality? Another tricky issue is how to define
the ground for the preferential measure, so as to reflect the reality of inequalities? Is one characteristic, say ethnicity, or religion,
taken alone, always appropriate? For example, if Suni Muslims are excluded from political participation, and their relative wealth or
poverty does not matter, it may be justified to tie the positive measure to religion alone. But if poor Roma children in Eastern Europe
face obstacles to accessing pre-school, and the same is true for poor non-Roma, would it be fair to base a positive measure on
ethnic criteria? How much should the overlap between ethnicity and poverty matter for our affirmative action criteria? In other
words, how does one ensure that justice for groups does not create injustice for individuals? Or is the lack of such a balance a part
of the price?
The 2008 Declaration of Principles on Equality stated: To be effective, the right to equality requires positive action. Positive
action, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and to accelerate
progress towards equality of particular groups, is a necessary element within the right to equality. This principle, in my view, is a
game changer. It reflects a departure from the notion of formal equality, i.e. identical treatment which could be complemented by the
occasional exception, in the form of affirmative action (which is tolerated rather than due, and always open to attack by aggrieved
individuals). With such a departure, the destination is a right to substantive equality which requires positive action. It transforms the
latter from an exception to a necessary element within the content of the right to equality.
From this perspective, our work at The Equal Rights Trust has provided abundant evidence that the bigger problem around the

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world today is not what is happening, but what is NOT happening: the scarcity of affirmative action. The damage done by the
occasional abuse of positive action (in Malaysia, for example), is dwarfed by the damage done by the persisting abstention from
positive action, which perpetuates and entrenches the power imbalance everywhere. If the growth of inequality is increasingly
acknowledged as one of the biggest challenges of this century, affirmative action can no longer remain an afterthought.
Dr Dimitrina Petrova is the Executive Director of the Equal Rights Trust.

Everyday Utopias and Challenging Preconceptions


By Claire Overman | 10th May 2014

Davina Coopers Everyday Utopias: The Conceptual Life of Promising Spaces considers the contribution that everyday utopias
networks and spaces that perform regular daily life in a radically different fashion make to transformative politics. They do this by
demonstrating the viability of alternatives to dominant social structures: there is no clearer way to challenge basic presumptions of
how things should work than by successfully showcasing alternatives.
Writing for the Hub, Dr. Cooper has discussed the advantages of such an approach through the sphere of equality rights for nudists.
In particular, it forces us to consider the practical implications of provision for equality. She cites the example of urban spaces,
designed for clothed individuals dirty benches, tarmac roads and narrow pavements implicitly accommodate clothed, rather than
naked, activity. Thus, thinking about equality in this more practical way allows us to abandon our attachment to the dominant social
norm.
That this approach to considering equality is beneficial can be seen in the sphere of disability discrimination. An example is the
conceptual shift in thinking about the causes of such discrimination. Certain statutory material adopts the medical definition of
disability, which attributes the difficulty which a disabled individual may have in everyday life to that disability. For instance, Section
6 of the UK Equality Act 2010 states that a person is defined as having a disability if he or she has a physical or mental impairment,
and that impairment has an adverse effect on day-to-day activities. Contrast this with the social definition of disability, which
holds that an individuals everyday difficulties stem not from the impairment itself, but from the fact that the world around them has
been constructed for the able-bodied majority. Article 1 of the UN Convention on the Rights of Persons with Disabilities adopts
this definition. It states that people with disabilities include those whose impairments, in interaction with various barriers, may
hinder their effective participation in society. An individual in a wheelchair isnt disadvantaged because of her wheelchair. Shes
disadvantaged because, catering for the non-wheelchair-bound majority, steps rather than ramps are the preferred method of
accessing buildings.
Another point made by Dr. Cooper in Everyday Utopias is that equality as a normative principle does not exist in a vacuum,
but is instead inextricably linked with other norms. Her example of nudism is again illustrative. She notes that, even where it is
permitted, it still operates within the confines of other norms: organized associational nudism is replete with rules, conventions and
etiquettehow to cook, deal with menstrual blood, manage sweat and other personal secretions The norm of equality in this
example has to compete with other norms of acceptable standards of hygiene, amongst others.
Once this complexity of normative interaction is revealed, we can look at attempts to counter discrimination with a fresh
perspective. Consider equal pay for men and women. One argument used to resist equal pay measures is that women will
inevitably contribute less to the workforce. For instance, Posners argument from 1989 was that the average woman expects to
take more time out of the work force to raise children, meaning that she will invest less in human capital than her male counterpart.
However, employing the broader view advocated above, we see that the hindrance to womens effective participation in the
workforce stems not from them being child-bearers, but from the fact that the norm is for women to take on the role of childcare.
The case law in this area is promising in its willingness to look at the influence of such entrenched norms when considering equality
provisions. In the case of Markin v Russia App. No. 30078/06, the European Court of Human Rights held that providing maternity
leave to servicewomen but not servicemen ha[d] the effect of perpetuating gender stereotypes and is disadvantageous both to
womens careers and to mens family life.
Dr. Coopers approach to considering equality law is therefore progressive, and appears to be part of a welcome trend of looking
beyond the individual victim of discrimination and to society and its norms. In doing so, we are able to reconsider what, not long
ago, were non-negotiables (that women would stay at home and care for children, for instance). It allows us to redefine the limits of
equality law, by forcing us to reconsider what truly drives differences in treatment.
Claire is a former editor and communications manager of the Oxford Human Rights Hub. She will be commencing pupillage at One
Brick Court in October 2015.

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Women and Gender


International Womens Day: Women and Girls Struggle for Equality in the Courts
By Blakeley Decktor | 8th March 2015

What better time than International Womens Day to embolden citizens to exercise their power over the judicial process? The
Gender Justice Uncovered Awards provide a vehicle for the public to be vigilant with the justice system by holding judges
accountable for their decisions.
What started as a call from women to end workplace discrimination has grown into a global movement to address inequality,
violence and discrimination against women and girls. Every 8th of March on International Womens Day we ask political leaders
to address these issues, but rarely do we make the same appeal to judges. What better time than International Womens Day to
embolden citizens to exercise their power over the judicial process? The Gender Justice Uncovered Awards provide a vehicle for
the public to be vigilant with the justice system by holding judges accountable for their decisions.
I have written previously about Bludgeon nominees, judicial decisions where judges relied on stereotypes and prejudice failing to
uphold the human rights of women and girls. This post highlights Gavel nominees: influential examples of the judicial process as
a space for promoting human rights. Gavel awards praise the work of those committed judges who lay out a clear framework for
advancement of human rights, creating a path for others to follow.
Some victories come at the expense of irreparable loss. In Spain courts failed to protect a seven-year-old girl when they allowed
her father unsupervised visitation, despite his history of gender violence against women. Her mother ngela implored the court
to order supervised visits, filing over thirty complaints until tragically, on April 24, 2003, the girls father murdered her during a
visit, unsupervised. Following a 12-year court battle, the CEDAW Committee condemned Spain in 2014 for relying on negative
stereotypes to diminish the seriousness of domestic violence. The Committee called for training to eliminate such stereotypes
and demanded the State always consider gender-based violence in child custody and visitation proceedings. Currently, Spain
is charged with implementing the Committees recommendations, a phase where the political will to prioritize the elimination is
essential to the process and which presents an opportunity for the State to demonstrate its commitment to combat this type of
violence.
After fifteen years, a Colombian court held the military accountable after two active-duty soldiers raped a woman in 1999. When the
woman first came forward, the Court denied the militarys responsibility holding that the soldiers conduct was not related to their
military service. Only after a new court visibilized the systemic use of violence against women as a tactic of war, the representations
of masculinity and femininity that armed groups instill in its members, and the ways women are targeted during conflict, could the
court properly hold the Army responsible. It required the military mandate training and implement guidelines to prevent, investigate
and punish violence against women.
The struggle for workplace equality continues in Argentina as an applicant was refused employment as a bus driver specifically
because she was a woman. A decision in the case by an appeal court was first nominated for a Gavel Award in 2010 because it
called for an end to gender-based discrimination. The case later reached the Supreme Court, which has affirmed women, indeed,
have a right to choose their profession free from discrimination.
In Botswana, where the penal code criminalizes consensual same-sex sexual conduct, the High Court ruled that the State must
afford LGBT rights organization LEGABIBO state-registration. The High Court guaranteed that Constitutional protections apply to
all individuals and affirmed that the criminal statute involving sexual conduct criminalizes behavior, not attraction. The Court praised
the objectives of the organization for promoting good values such as self-reliance, non-discrimination, health, and education.
Fortifying the importance of allowing debate and advocacy, the judge stated that in a democratic society asking for a law to be
changed, such as the one criminalizing same sex activity, is not a crime or incompatible with peace, welfare and good order. The
Courts affirmation that the organization does not offend morality sets out a critical discourse in the face of sweeping criminalization
of speech, assembly and other rights of perceived same-sex attraction around the world.
Judges continue to issue both positive and negative decisions related to gender equality. On International Womens Day, we invite
you to celebrate the visionaries working to create a better future free from violence and discrimination in order to demonstrate that
courts have the power to defend the rights of women and girls. We celebrate on this day seeing there is more to do and knowing
we have the power to act.
Blakeley Decktor is a Staff Attorney based in Bogota Colombia at Womens Link Worldwide, an international human rights
organization that works to promotes the rights of women and girls. Prior to joining Womens Link she served as a Legal Fellow at
the International Gay and Lesbian Human Rights Commission (IGLHRC).

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Inspiring Change Through Law for International Womens Day


By Laura Hilly 9th | March 2014

March 8th is International Womens Day, formally observed by the United Nations in recognition of the fact that securing peace
and social progress and the full enjoyment of human rights and fundamental freedoms require the active participation, equality and
development of women and to acknowledge the contribution of women to strengthening the strengthening of international peace
and security. The official theme for International Womens Day 2014 is Inspiring Change.

While there is much more to be done in order to fully realise the human rights of women around the world, today we celebrate four
cases that can inspire us all to continue to see law as a positive instrument for realising womens human rights.
Womens Inheritance Rights
Late last year we saw an encouraging decision from the Court of Appeal of Botswana drawing upon a living interpretation of
customary law to underscore the importance of gender equality and to protect womens socio-economic rights. In Ramantele v
Mmusi CACGB-104-12 the Court upheld Edith Mmusis and her sisters right to inherit their parents home, despite a claim from
her male nephew that under Ngwasketse customary law the family home always passes to male heirs. As Tara Winberg wrote
in an earlier post, the Mmusi ruling has recognised and elevated the social reality of womens inheritance over customary law
stereotypes of exclusively male heirs.
Sex-Workers Rights
The Canadian Supreme Court in the case of Canada (Attorney General) v Bedford struck down as unconstitutional provisions that
criminalised a certain activities associated with prostitution. The Court reasoned that such provisions violated the constitutional
right to security of sex workers, who are predominately women. The criminal provisions prevented women from implementing
safety measures such as hiring bodyguards, working indoors or properly screening potential clients and perform health checks. All
of these prohibitions materially increased the risk of harm to sex workers. As Meghan Campbell argues, the reasoning of both the
Supreme Court and the Ontario Court of Appeal in Bedford is welcomed because rather than debate on the morality of prostitution
or the importance of quiet and orderly neighbourhoods and streets, the [Court] squarely addresses how the law increases the
risk of serious bodily harm to those who work in prostitution. Not only did it focus on the prostitute, but it allowed her interests to

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triumph
Positive obligations to protect women and girls from domestic violence
The European Court of Human Rights has continued to develop a substantive equality approach to human rights. In Eremia and
Others v Moldova [2013] ECHR 453 1 police and the social services had put pressure on Ms Eremia to drop the case against her
abusive husband, and had made sexist and stereotypical remarks to her when she complained of ill-treatment. The ECtHR held
that there had been a violation of Art 14, in conjunction with Art 3. The case is important for a number of reasons, not least that the
Court recognizes the gender discriminatory aspects of domestic violence. It confirms the positive obligations upon governments
to protect from domestic violence, and applies a test of effectiveness in this regard. As Dimitrina Petrova highlights, the Court
stated that the authorities actions were not a simple failure or delay in dealing with the violence against Ms Eremia, but amounted
to repeatedly condoning such violence and reflected a discriminatory attitude towards her as a woman. It was clear from the facts
of the case that the authorities did not fully appreciate the seriousness and extent of the problem of domestic violence in Moldova
and its discriminatory effect on women. Accordingly, although the state had put in place a legislative framework allowing measures
against persons accused of family violence, and had taken steps to protect the applicants, these had not been effective. This
case clearly signals a move by the ECtHR towards a substantive conception of equality that is prepared to recognise and address
institutionalised prejudices.
Education Rights in South Africa
In his official message for International Womens Day, UN Secretary General, Ban Ki-moon highlighted primary education for girls
as one of the key areas to address on the journey towards gender equality. Recent litigation in South Africa, whereby the delay
on behalf of the government in providing chairs and desks for learners in socio-economically deprived classrooms in the Eastern
Cape was declared as a breach of their constitutionally enshrined right to education, is a welcome development. Education has the
power to transform lives, particularly the lives of women and girls. We look forward to seeing more developments in this area over
the next 12 months.
Dr Laura Hilly is a Postdoctoral Fellow and Deputy Director of the Oxford Human Rights Hub.

The Bludgeon Nominees in the Gender Justice Uncovered Awards 2015


By Blakeley Decktor | 12th February 2015

Judges from all over the world should be held accountable for the discriminatory decisions they issue on matters related to gender
equality, and for how these rulings affect the lives of women and girls. The bludgeon category in the Gender Justice Uncovered
Awards organized each year by Womens Link Worldwide and the participation of people of all the world contribute to it.
The privilege of deciding an individuals fate by interpreting and applying the law is one granted to judges by the people. With it
comes the responsibility to protect human rights and not allow the law to compound discrimination. The people, who entrust judges
to issue legal decisions, maintain the right to question these decisions, especially those that fail to protect gender equality or the
rights of women and girls. Womens Link Worldwide created the Gender Justice Uncovered Awards as a tool for people to monitor
judicial decisions around the world and hold judges accountable for their decisions. Every year, we invite people from all over the
world to nominate court decisions that promote gender equality for a Gavel Award, and those that set it back for a Bludgeon Award.
A jury (this year: Junot Daz, Claudia Paz y Paz Bailey and Manjula Pradeep) chooses the winners for gold, silver and bronze
Gavels and Bludgeons and people from all over the world vote online for the Gavel and Bludgeon Peoples Choice Awards. This
article analyses some of the decisions nominated for a Bludgeon award in the 2015 Gender Justice Uncovered Awards.
In a decision by the United States Supreme Court allowing employers the choice to refuse to cover contraceptives for their
employees, Hobby Lobby forces women to pay out-of-pocket in order to access contraceptive coverage. The decision defines
corporations as people, awarding them freedom of religion protection at the expense of the thousands of employees who do not
share their beliefs.
The Special Fast Track court of India grew out of a 2012 public outcry calling for better laws and strategies to prevent violence
against women in India following the fatal gang rape of a Delhi woman. A Judge in this court specifically envisioned to advance
the rights of women and girls found that forced sex within the context of marriage cannot be defined as rape. The Judge issued
this decision in a case where the woman had been drugged, forced to sign marriage-related documents while intoxicated and later
raped.
A court ruled to decrease the amount of compensation a woman recovered following a medical error that left the woman in severe
pain and without the ability to carry out everyday tasks, sometimes as simple as walking or sitting. Employing stereotypical gender
roles to justify its verdict, the Portuguese Court based her damages on her responsibilities as a wife and mother rather than
compensating the woman for her significant losses of health and well-being of a woman as an individual.
In a decision refusing transgender people the ability to change gender markers on ID documents, the Constitutional Court of Peru,

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further marginalized and put at risk transgender people by labelling them as having a personality disorder, a mental disorder
and a pathology. The decision uses unscientific grounds to uphold the right and safety people enjoy every day possessing
identification documents that match ones gender.
The Gender Justice Uncovered Awards provides an accessible platform for people around the world to read, discuss, and think
critically about how judges interpret and implement the law. This form of vigilance on the part of the public forces judges to be more
critical of their own interpretation of the law and ideally more committed to their duty to comply with their obligations to implement
human rights.
Blakeley Decktor is a Staff Attorney based in Bogota Colombia at Womens Link Worldwide, an international human rights
organization that works to promotes the rights of women and girls. Prior to joining Womens Link she served as a Legal Fellow at
the International Gay and Lesbian Human Rights Commission (IGLHRC).

Winning Decisions in the 2014 Gender Justice Uncovered Awards


By Tania Sordo Ruz | 6th July 2014

Judges from all over the world are held accountable for the decisions they issue and for how these rulings affect the lives of women
and girls worldwide. This post considers the court decisions recognized by the jury and the public for advancing or setting back
gender equality in the 2014 edition of the Gender Justice Uncovered Awards.

I have previously written on some of the decisions that did the most to help or harm gender equality, which had been nominated for
the 2014 Gender Justice Uncovered Awards, presented by Womens Link Worldwide.
On June 25 2014, the jury spoke, as did the public, who voted for the Peoples Choice Awards, picking the decisions that did the
most to advance or set back gender equality. Their votes helped raise awareness of the ability of the Awards to create dialogue
between civil society and justice systems.
In its review of decisions in which judges used their legal authority to guarantee equality, the jury, made up of Yvonne Mokgoro
from South Africa, Hctor Abad Faciolince from Colombia, and Kerry Kennedy from the United States, awarded the Bronze Gavel
to the Genocide of the Ixil Maya People case from Guatemala. In this case, the court sentenced Efran Ros Montt to 80 years in
prison for genocide and war crimes, including sex crimes and gender violence. The Silver Gavel went to the Two-Finger Test case
from Bangladesh, in which the Supreme Court ordered several government agencies to justify the continued use of this invasive
procedure performed on rape victims. In response, the Bangladeshi government formed a committee to create new guidelines,
which if implemented would ban the practice.
And the 2014 Golden Gavel was won by the 160 Girls Case from Kenya, in which a judge ordered the police to reopen its

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investigation of a long list of cases of child rape and enforce applicable laws.
Turning to the worst court decisions for womens and girls human rights, the jury awarded the Bronze Bludgeon to the Tzotzil Girl
Case from Mexico, in which a 14-year-old indigenous Tzotzil girl was jailed and fined after she left her husband and returned to her
family. The Silver Bludgeon went to the Punished for Driving case from Saudi Arabia, a ruling sentencing a woman to 150 lashes
and 8 months in prison for driving a car and resisting arrest when she was stopped by local police. And finally, the 2014 Golden
Bludgeon was taken by the Gang Rape case from India, where a Village Council sentenced a 20-year-old woman to be gangraped as punishment for having a relationship with a man from another community.
The public got involved in the Awards too, casting its votes on the Womens Link Worldwide web site, applauding the court rulings
that upheld womens and girls rights and denouncing sexist decisions that set back gender equality. The Peoples Choice Gavel
went to the Double Orphan case from Spain, a ruling in which a judge found that the daughter of a victim of gender violence was
a total orphan after her father went to prison for murdering her mother. And the Peoples Choice Bludgeon was taken by the Yakiri
Case from Mexico, in which a young woman who was kidnapped, assaulted, and raped was imprisoned for aggravated murder for
defending herself against the rapist who tried to murder her.
Every year, the Gender Justice Uncovered Awards show that judges worldwide need to be held accountable for their decisions.
The Awards encourage dialogue about how these rulings uphold principles of equality or fail to do so. This year, 34 decisions were
nominated for a Gavel and 31 for a Bludgeon, and many organizations and members of the public got involved too, helping raise
awareness that gender justice has to become a worldwide reality.
Tania Sordo Ruz, attorney at Womens Link Worldwide. Master in Interdisciplinary Gender Studies and in Latin American Studies:
Cultural Diversity and Social Complexity from the Autonomous University of Madrid. Member of the Feminist Studies Group at the
Bartolom de las Casas Institute of Human Rights of the Carlos III University of Madrid.

How can Judges be Held Accountable?


By Tania Sordo Ruz | 6th June 2014

Each year, operating as a channel of communication between society and legal systems, Womens Link Worldwide organises the
Gender Justice Uncovered Awards, demonstrating how justice with gender perspective must be a reality around the world. This
post takes a look at some of the court decisions which have most positively and negatively affected gender rights.

In legal practice, it is not uncommon to find discriminatory court rulings that violate the rights of women and girls, leaving them with
no protection when they need it the most. Unfortunately, these decisions occur all over the world. For example, in a case in the
Montana District Court, in the United States of America, a 14-year old girl was raped by her teacher. Her aggressor was sentenced

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to a mere 30 days in prison since the judge considered that the girl was acting older than her chronological age and was as much
in control of the situation as the 49-year old teacher who raped her. Similarly, judges of the Constitutional Court of the Dominican
Republic did not recognise the nationality of a Dominican mother-of-four, as she was the daughter of Haitian immigrants. Further, it
demanded that the government do the same in all cases of Haitian descendants born in the Dominican Republic.
Nevertheless, and more promisingly, judges also take courageous decisions and use the force of law to guarantee equality. For
example, a woman in Zimbabwe fell pregnant after falling victim to an act of rape and, despite national law authorising it, was
denied access to emergency contraception and later to an abortion, She was therefore forced to give birth. Despite all the pressure
placed upon them, the judges of the countrys Supreme Court upheld the States responsibility for not having guaranteed the
womans rights, demanding that she be compensated and that measures of nonrepetition be taken. Similarly, the right to property of
women in polygamous marriages in Rwanda was safeguarded by judges of the Rwandan Supreme Court which confirmed that the
principle of equitable distribution of property in cases of dissolution also apply to these unions, despite the fact that these marriages
are not recognised by national law.
All of these cases are part of the Gender Justice Uncovered Awards (GJUA) organised by Womens Link Worldwide (WLW), an
international human rights non-profit organisation working to ensure that gender equality is a reality around the world.
As these cases confirm, judges give content to the principle of gender equality, therefore contributing to its progress or its regress.
However, in this endeavour, how are judges held accountable for the decisions they take? The women in these stories have
names, as well as a life that has changed, either for better or for worse, due to the judicial decisions taken in these cases. In this
way, the GJUA propose a channel of communication between society and judiciary, rendering the court rulings and statements of
judges around the world visible, as well as inviting people to debate about how these cases did or did not guarantee equality.
Tania Sordo Ruz, attorney at Womens Link Worldwide. Master in Interdisciplinary Gender Studies and in Lantinamerican Studies:
Cultural Diversity and Social Complexity from the Autonomous University of Madrid. Member of the Feminist Studies Group at the
Bartolom de las Casas Institute of Human Rights of the Carlos III University of Madrid.

Rethink Needed as new Australian High Court Justice Appointment Seems to Maintain
Gender Imbalance
By Kim Rubenstein | 12th December 2014

The appointment of Geoffrey Nettle QC, as the replacement for Justice Susan Crennan on the High Court of Australia when she
retires in February 2015 calls, yet again, for a radical rethinking of the way High Court judges are appointed. It provides further
impetus to those who believe in equality of opportunity in Australia to call for a mandated commitment to at least 40 per cent
composition of either gender at any time on the High Court of Australia.
Attorney-General George Brandis, in announcing the new appointment, made reference to the following attributes of the new
appointment his brilliant career in the law his combined degrees from the ANU and Melbourne University, and his Bachelor of
Civil Law from Madgalen College, Oxford. There are a growing group of women judges on the Courts in Victoria, both sitting on the
Supreme and Federal Courts who could have been announced in the same fashion as having brilliant careers, of being Supreme
Court prize winners and Rhodes Scholars and Law Review editors. Why was a man preferenced over the woman who could have
been extolled in the same, or arguably even more meritorious fashion?
At the moment it is (save for the one single woman) an entirely male conservative cabinet deciding who the best person is for the
job. Indeed, our century-old experience of judicial selection has shown that when male politicians gaze at the available gene pool of
potential High Court appointees, they see only reflections of themselves and what they understand as depictions of merit.
And while there are plenty of women now who would tick all the boxes required, we need to also acknowledge that other matters
that are essential to the role of High Court justice include: reflection of the community, responsiveness to the communitys needs,
life experiences reflecting those of the community. This is because law is not just a scientific tool used to determine answers it is
full of values, and values are developed through life experience.
This was starkly illustrated in the United States, where the Supreme Court heard argument on the constitutionality of state
legislation prohibiting the burning of crosses. The hearing provoked a particularly passionate interjection by Justice Clarence
Thomas, the only African-American on the Supreme Court. He spoke of the reign of terror struck by the Ku Klux Klan in the nearly
100 years before Virginia passed the challenged law. A burning cross is indeed highly symbolic, Justice Thomas said, but only of
something that deserves no constitutional protection. A burning cross is unlike any symbol in our society, he said.
The New York Times reported that during the brief minute or two that Justice Thomas spoke, about halfway through the hour-long
argument session, the other justices gave him rapt attention. Afterwards, the courts mood appeared to have changed. While the

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justices had earlier appeared somewhat doubtful of the Virginia statutes constitutionality, they now seemed quite convinced that
they could uphold it as consistent with the First Amendment.
The courts mood change reminds us of the significance and importance of the diversity of life experience on ones view of the
law and the way disputes are resolved. More importantly, it shows the need for a diversity of such experience to be available to
the highest court of the land. In Australia, we must also ensure that the diversity of our community is reflected in the High Court of
Australia and gender is one of the meritorious matters that must be considered in the appointment process.
There are those who will respond by saying paying attention to gender is an unnecessary exercise of affirmative action. In
counterpoint, however, it is difficult to dispute that we already have a system of affirmative action in favour of men. The stacking of
the numbers against women can be readily seen in the most cursory examination of the senior ranks of Australian society. Do men
really merit this outcome or is the system, by unspoken assumption, looking after them?
This backdoor system of affirming men in the top posts is more insidious in its impact on society. It is a statement by this
government to the daughters and granddaughters of the current men and women of Australia that even if they achieve all the
traditional baubles of merit and have brilliant law careers, they will not be considered for the High Court of Australia. It undermines
any hope of justice not only being done but being seen to be done.
Professor Kim Rubenstein is the director of the Centre for International and Public Law and a Public Policy Fellow at the Australian
National University.

Judicial Appointment of Women on the Decline in Canada and Australia


By Ravi Amarnath and Laura Hilly | 2nd March 2015

While many countries have superficially committed to the goal of gender equality with a lot of noisy chatter about women on boards
and womens participation in politics, it appears that the glass ceiling is hardening for female judicial applicants in Canada and
Australia, at least in the Superior Courts.

In its latest round of judicial appointments in December 2014, Canadas Conservative government appointed just eight out of 33
or 24 percent of vacant federal judiciary positions to female applicants. Counting the latest appointees, roughly 34 percent of all
judges serving on Canadas superior and appellate courts, as well as the Federal Court, Federal Court of Appeal and Tax Court of
Canada, are female.
While the judicial appointments procedure in Canada involves a number of individuals, it remains largely a political process.
Committees in each province and territory representing the bench, the bar, law enforcement and the general public interview
prospective candidates for vacant positions. The final say on federal appointments, though, is vested with the Cabinet, who act on

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the advice of the federal Minister of Justice, or in the case of appointing Chief Justices, the Prime Minister of Canada.
Critics of the Canadas current federal government allege that it has been at best indifferent, and at worst purposefully stagnant,
in its pursuit of gender parity on the bench. It is difficult to validate these complaints, though, since the appointments process for
judges is secretive.
Canadas Office of the Commissioner for Federal Judicial Affairs Canada is responsible for the administration of the federal judicial
appointments process. While applicants must indicate their gender when applying, these statistics are not made public.
However, a recent report validates the idea that Canada has regressed on achieving gender parity on the bench. In March 2013,
Canadas chief actuary estimated that gender parity would be achieved by 2035, 8 years later than forecasted in a previous report
from March 2010.
The situation in federal courts and tribunals in Australia is no more encouraging. While the High Court of Australia has, until
recently, proudly boasted gender parity in its composition (with three women justices out of seven) this number was reduced
to two women out of seven with the recent retirement of Justice Susan Crennan and Justice Geoffrey Nettle announced as her
replacement.
This reduction in numbers of women on the High Court of Australia is particularly concerning when viewed in light of the wider
federal landscape. Despite women currently comprising 46 per cent of the practicing legal profession (counting both barristers and
solicitors) at present, only 11 women out of the 46 members of the Federal Court of Australia are women (soon to be 11 out of 47
(23 percent) when Justice James Edelman commences his appointment on 20 April 2015). Since coming to the office in late 2013,
the current Commonwealth Attorney-General, Senator George Brandis, has had 17 opportunities to make appointments to federal
courts and tribunals. On only two occasions has he found a woman to be the best person for the job.
This also comes as Senator Brandis has decided to move away from the more structured process for federal appointments,
established by the previous Labour government 2008, that included articulating publically available appointment criteria; advertising
vacancies and calling for nominations; and establishing an Advisory Panel to make recommendation to the Attorney-General.
Rather, he has reverted to the old process of secret sounding with, as Professor Andrew Lynch describes, the revival of smog-like
opacity around federal judicial appointment processes.
A recent independent report prepared by Karon Monaghan QC and Sir Geoffrey Bindman QC for the British Labour Party highlights
that the pursuit of a diverse judiciary, including a gender diverse judiciary, is important not only to protect the public face and
legitimacy of the institution, but to ensure that there is equal opportunity for the many women who enter the legal profession to
excel on equal footing with their male colleagues.
It is also a matter that impacts upon the quality of justice that such institutions can afford. Monaghan and Bindman were firmly of
the view that:
if we wish to see a judiciary that collectively produces socially sensitive and well-reasoned decisions of the highest quality a
judiciary which does the job the public expects of it then it must be a diverse judiciary. A diverse judiciary will dispense better
justice.
Regressive rates in appointing women to the federal judiciary in Canada and Australia severely compromise this and must be
cause for concern.
Ravi Amarnath was born and raised in Fort Saskatchewan, Alberta (Canada). He is a graduate student in law at the University of
Oxford.
Dr Laura Hilly is a Postdoctoral Fellow and Deputy Director of the Oxford Human Rights Hub.

Gender and the Judiciary: Bosnia and Herzegovina


By Majda Halilovic and Heather Huhtanen | 14th June 2014

It is sometimes assumed that if codified law is objective, neutral, and impartial, gender will have little or no influence on the
implementation of the law.
Yet research, including the work accomplished by Project Implicit, has increasingly revealed the limits to which an individual is able
to be impartial and objective regardless of their profession. This post summarizes research aimed at uncovering the influence of
gender within the judiciary of Bosnia and Herzegovina.

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In 2013 DCAF, a centre for security, development and the rule of law in Geneva, and the Atlantic Initiative, an NGO promoting EuroAtlantic integration in Bosnia and Herzegovina (BiH), conducted research looking into the influence of gender within the judiciary
of BiH. The views and opinions of approximately 161 judges, prosecutors, attorneys, and court associates were captured through
an anonymous online questionnaire and in-person interviews. The research revealed the influence of gender, whether real or
perceived, in both the social and professional relationships of court professionals, and on judicial practice and decision-making.
Questionnaire and interview data identified a number of ways in which gender-related attitudes or behaviors can impact the
atmosphere of the judiciary and collegial relationships among and between members of the judiciary. For example, the online
questionnaire found that 24% of respondents had either witnessed or personally experienced a member of the judiciary being
called or referred to by a name other than their title or surname (i.e. honey, sweetie, young man, etc.) in the courtroom or
courthouse. This data was reinforced by a number of anecdotes shared during interviews. One female attorney recounted being
called girl in court by a male attorney. Another female, a judge, recalled a male judge turning to her during a judicial panel
proceeding and asking, What did you want to say, beautiful? Women represent approximately 60% of all judicial appointments in
BiH. Perhaps not surprisingly, gender stereotypes were routinely used to explain this phenomenon. For example, one female judge
framed the gender balance of judges in the following way:
There are more women [in judicial positions] because this is a very hard job with a large case load and women are harder working
and more responsible than men. Men tend to stay away from the position of judge because this job is no longer very valued and is
not properly rewarded.
In contrast, a number of male interviewees minimized the work and role of judge. One male judge suggested that the reason there
are more women in judicial positions is because the job is, in fact, less strenuous than other jobs. A male prosecutor went so far
as to link the gendered nature of power relations between women and men to the representation of women in the BiH judiciary. He
postulated: Maybe because women are subordinate to men at home, that is the reason they apply for the position of judge; in this
position they are dominant at work, which compensates for their situation at home. These responses provide examples of gender
stereotyping by both women and men in the judiciary.
Women distinguish themselves as better suited for legal positions in relation to their natural characteristic of being harder working
and more responsible than men and by contrast suggest that men are not hard working and responsible. Men characterize
women as innately less capable (by characterizing the job itself as not difficult) or motivated by a desire for power and domination
(in contrast to an interest in the law or justice).
Lynn Hecht Schafran, director of Legal Momentums National Judicial Education Program to Promote Equality for Women and
Men in the Courts (NJEP) argues that this stereotypical thinking about the nature and roles of women and men is one of the most
prominent ways in which gender bias influences court operations, procedures, and decision-making. And indeed, the sum of these
reflections, from referring to a woman as a girl or beautiful, to believing that women are in judicial positions because the job is easy
(men) or that women are in judicial positions because they are harder working and more responsible (women), actively contributes
to an environment in which impartiality, or at the very least, the appearance of impartiality, are difficult to achieve.
Majda Halilovi is the head of research and policy for the Atlantic Initiative in Bosnia and Herzegovina. She holds a masters degree
from Cambridge University and a doctorate in sociology from the Open University in the United Kingdom.
Heather Huhtanen is a project coordinator for the gender and security programme at DCAF in Geneva. She holds a masters
degree in international development women, gender and development from the International Institute of Social Studies, Erasmus
University, the Netherlands.

Belgian Parliament Introduces Sex Quota in Constitutional Court


By Adelaide Remiche | 21st April 2014

On the 4th of April 2014, the Belgian Parliament passed a Bill that introduced a sex quota in the composition of the Constitutional
Court (CC). It requires the Court to be composed of at least a third of judges of each sex.
This requirement will however not enter into force immediately, but only once the Court is in fact composed of at least one third
of female judges. In the meantime, a judge of the underrepresented sex shall be appointed every time that the two preceding
appointments have not increased the number of judges of this underrepresented sex. For example, if women remain unrepresented
on the Court (as they currently are, representing only around 16% the Court), and the next two appointees are men, the third
appointment will have to be a woman.
Introducing quotas in the composition of the CC of Belgium a paradigmatic example of a State which has historically had to find
compromises between various groups is not in itself revolutionary. As a matter of fact, the composition of the CC has, from its

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creation, required linguistic and professional quotas: six judges should be Dutch-speaking, three of whom should be former MPs,
and six judges should be French-speaking, again, three of whom should be former MPs. Even this new introduction of sex-based
quotas is not completely at odds with the previous spirit of the rules surrounding judicial appointments: the Act on the CC has stated
since 2003 that the Court shall be composed of judges of both sexes. However, this previous requirement was a minimal one
and did not guarantee the achievement of meaningful sex diversity: only four women all former MPs have been appointed to
the Constitutional bench since its creation in 1984. Moreover, up until January 2014, the Court has never counted more than one
woman at a time among the twelve judges sitting on the bench. Requiring at least one woman on the bench has led (until 01/2014)
to the appointment of only one woman to the bench at any particular time. No more.
Such an underrepresentation of women has been constantly criticised by some MPs, who have lobbied for more than 10 years
for more sex diversity on the bench. They have argued for diversity for three main reasons. First, it would reinforce the democratic
character of the courts. Second, it would allow for a better protection of sex-specific interests. And finally, it would improve the
quality of justice by bringing more flexibility and more creativity on the bench. Since 2003, various bills have been proposed to
introduce sex-based quotas as a mean to achieve diversity.
Their promoters have relied on four different, but interrelated, arguments:
1. The introduction of sex quotas is a powerful stimulus for change that has proved to be useful, notably with regards to the
gender composition of the Parliament.
2. There is some urgency to appoint more women on the constitutional bench.
3. Other less restrictive alternatives such as requiring that at least one member of the Court should be a woman have failed to
bring about real sex diversity.
4. Quotas are not a radical measure since there are enough qualified women who could be appointed to the bench.
Ten years and eight bills later, the promoters of sex-based quotas have finally won, at least with regards to the composition of the
CC.
This political debate is based on theoretical underpinnings that are worth discussing, including in academic circles. While such
questions have been investigated in the common law context, they are still relatively unexplored within the civil law legal cultures.
It is time for civil lawyers, and in particular French-speaking scholars, to start to engage seriously with these difficult but fascinating
issues.
Adlade Remiche is a PhD Candidate at the Center for Public Law (Universit libre de Bruxelles).

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Revisiting Mass Sterilisation in India Population Management or Menace?


By Shivani Misra | 21st December 2014

According to the 2011 census, the population of India was recorded as 1.2 billion people. Such a situation calls for urgent measures
to address family planning and to control of population growth.

Like in most modern democracies, government agencies, burdened with welfare obligations take upon themselves the duty to
ensure a controlled population figure. Following such a welfare model, the Indian government has been conducting sterilisation
camps across the country and awarding cash incentives for the same. Female sterilisation is seen by some, including those
writing government policy, as a viable medium to control population growth and is often preferred over the alternatives of using
contraceptive pills, condoms or even male sterilisation. The coercive nature of such policy measures are presented by the
government as not only acceptable, but as imperative. However, the tragic deaths of 12 women in one such sterilisation camp in
the state of Chattisgarh and the hospitalisation of 60 more, unveiled a series of horrifying realties of the population control policies
endorsed by the Indian government. The incident urges one to think and reflect upon the nature of population control measures.
Why Women?
A UN report on contraceptive patterns showed that India carried out 37% of the worlds female sterilisation and 1% of male
sterilisation. The heavy contrast in the figures may be viewed as a reflection of the deep rooted patriarchy that is entrenched in
the Indian society. Womens sterilisations are seen as an easy method that would enable population control without obstructing
the male virility. Human Rights Watch also noted that health workers were assigned targets for family planning services which,
to a major extent, involved motivating people for female sterilisation. This remains prevalent today despite India asserting at the
International Conference on Population and Developments in 1994 that there would be a target free approach to family planning.
While female sterilisation is far more common than male sterilisation in India, the latter though procedures such as a vasectomy, is
safer, simpler, about half the cost of female sterilisation, and are probably more effective.
Health Care Precautions
Women voluntarily opt for undergoing sterilisation as a trade off for cash and welfare incentives. However, the shocking incident
of November 2014 saw many women trading off their lives. Appallingly, this isnt a one off incident. Between 2009 and 2012 the
government paid compensation for 568 deaths resulting from sterilisation. A total of 1,434 people died from such procedures in
India between 2003 and 2012. In the present state of affairs, journalists reported on the abysmal conditions of the instruments
used for surgery and the lack of proper pre and post operative care. Contaminated drugs used in the camps were also identified as
probable causes of the tragedy.
Needless to say, the approach taken up by the Indian government needs to be revised:

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The selective nature of targeting women to undergo sterilisation is fundamentally flawed and warrants attention. Both sexes
must be equally engaged in the process. More male participation in effective contraceptive selection is needed. Thus,
awareness and counselling on contraceptive choice needs to be increased.
Contraceptive alternatives need to be made easily accessible and people must be motivated to use them.
Lastly, consent for sterilisation processes must be sought only after informing the individual about the implications of surgery
and also of the availability of other (more transient) alternatives.

Policy makers must carefully scrutinise such discriminatory policy decisions through the lens of equality and welfare. The question
that needs to be inspected upon by our collective consciousness is whether such policy initiatives should be encouraged when the
state machinery lacks the facilities to safely implement them?
Shivani Misra is an undergraduate law student in GGSIP University, Delhi.

The Rhodes Project: Celebrating Many Versions of What Women Can Be


By Susan Rudy | 25th November 2014

Earlier in 2014, the Rhodes Project marked its 10th anniversary with a celebration at the home of its founder, Dr Ann Olivarius. In
2004, Olivarius, a member of the second class of women Rhodes Scholars, embarked on a project to better understand the lives
and experiences of her fellow female scholars. Since its inception, the Rhodes Project has conducted interviews with over 125
Rhodes women and developed into a dynamic research centre.
The history of the Rhodes Scholarship has primarily been illustrated using the stories of men: figures like Bill Clinton, J. William
Fulbright and Bob Hawke loom large, and little heed is paid to the women who have received the scholarship In his 2008 history of
the Rhodes Scholarship, Legacy, Philip Ziegler dedicates a single paragraph to discussing the achievements of Rhodes women
he asserts that they are generally less impressive, but doesnt seek to explain why.
The Rhodes Project was founded to correct this imbalance by investigating the lives of women Rhodes Scholars. Over 1,200
women have earned Rhodes scholarships, and the Rhodes Project has collected a rich set of data regarding their lives and
careers. Rhodes women are a unique category of high achievers, and many have enjoyed successful careers in countless fields of
work, including politics, finance, business and academia, often while sustaining long-term partnerships and raising children. Their
experiences can illuminate our understanding of contemporary womens lives more broadly, at work and at home.
Research at the Rhodes Project has examined Rhodes womens experiences at Oxford and after, how they progress in their
careers and manifest leadership, and how they contend with the challenges of balancing their professional with their personal lives.
We have also considered what they have to say about whether they had or need role models, and if they do, where they look for
them. With Dr Kate Blackmon of the Sad Business School I have addressed academic conferences and published a number of
briefings and working papers on these topics and we are now co-authoring a book on the gender gap in leadership, forthcoming
with Oxford University Press.
What we have learned is that leadership involves much more than assuming a senior role. It is deeply connected to issues of
identity. Whether or not young women Rhodes Scholars fulfil their potential for leadership has everything to do with how they see
themselves and how others see them at crucial points in their lives. In the life stories told by Rhodes women, a recurring theme
is the difference between how they wanted to behave as leaders and their awareness of the expectations that others had of them
as women. In the words of one Scholar:
When I was a prosecutor I had a male supervisor, most of them were male, who said to me my rating would be higher if I was a
man because men can be aggressive in the courtroom, but women need to be little bluebirds of happiness. Now if anyone knows
me, a little bluebird of happiness has never been in my job description [group laughter]. And I was doing more trials than every man
[at the firm], I was winning trial after trial, but I wasnt a little bluebird of happiness and therefore my rating was lower.
This Scholar had held a high-level position on a national security committee and was an experienced trial lawyer, but she was
expected to be little, birdlike, and happy just because she was a woman. Another participant said:
Women think that if youre dutiful and youre a good girl you will be rewarded. And you know what? That is just not true [group
laughter]. And the truth is, I dont think theres any over-arching conspiracy. I think the way the world works is if you want something
you have to ask for it, whether its clients, or business, or money. The fact is you have to assert yourself.
The Rhodes Project aims not just to celebrate women Rhodes Scholars: we also hope to offer alternative versions of what it means
to be a woman. Young women today still suffer from a dearth of desirable role models and we believe that women Rhodes scholars

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with their diverse backgrounds and broad range of experiences represent a vibrant resource. With this in mind, the Rhodes
Project created a Profile Series, where we make some of the Scholars wisdom and life lessons available to the public. Most
recently, we are working with current women Rhodes Scholars, engaging them on issues relating to our research and providing a
space for them to discuss the topics that arise. Through our research and our outreach, we hope not only to support the community
of Rhodes women, but also to shed light on gender inequality and work towards a fairer world for women.
Professor Susan Rudy is Director of the Rhodes Project and a Visiting Scholar at Sad Business School.

Menopausal Women Fear Discrimination in the Workplace


By Natalie Cargill | 30th October 2014

According to new research, women of menopausal age fear age-based discrimination in the workplace and face a total lack
of menopause-specific support from employers. Interdisciplinary research resulting from a collaboration amongst academics
from Monash, La Trobe, and Yale Universities has found that many women were reluctant to speak with their managers about
menopausal symptoms for the fear of being stereotyped as old.

The report found that menopause is a silent issue for most organisations, and older women represent a group whose working
lives, experiences and aspirations are poorly understood by employers, national governments and academic researchers alike.
The study recommended that policy makers:




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Develop the business case approach to older women in the workplace surrounding resilience, knowledge and collegial labour
as a significant factor in organisational success;
Develop later-life work policies that take into account how changing personal circumstances and opportunities may reconfigure
(which may be both challenging and positively related to career development) womens employment perspectives;
Promote career models that recognise and foster second or third career stage development;
Provide resources for organisations to use that will facilitate and support, rather than manage, menopause, such as
information sheets and examples of best practice;
Consider the visibility of different working bodies and the subliminal messages that visual communication, figureheads and
initiatives targeting particular groups (e.g. only images of young female workers or older females workings who look young)
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The right to freedom from discrimination is internationally recognised as a human right, and older women are often the subjects of
compounded forms of discrimination within and outside of the workplace. As one participant in the study said, I think it should be a
time of recognition of a different age of a woman but I think its more a disappearing of women [] I have had thoughts that maybe
I would be less able to be employed because of my age. [] I think that generally menopausal women are invisible [Kirsty, 51].
The latest report of the UNs Working Group on discrimination against women was the first to recognise the scarcity of attention
that has been paid to the negative impacts of the business sector on womens enjoyment of human rights. The report noted that
womens quality of life in older age derives from the culmination of the earlier phases in their life cycle and bears their imprint, and
accordingly the treatment of older women can be regarded as a litmus test for the quality of womens economic and social life.
To pass this litmus test, an inclusive workplace sensitive to the needs of older women is essential. Menopause is a significant life
event that affects all women, and as workforces become older and more gender-representative, womens health issues need to be
increasingly mainstreamed in anti-discrimination and health and safety legislation.
However, as the interdisciplinary study shows, there is a long way to go, and progress will depend on a multi-stakeholder approach
encompassing health and safety legislation, anti-discrimination policies, human resources management, government intervention,
and international standards-setting bodies.
Natalie Cargill is a University of Oxford graduate and has worked with the United Nations and development NGOs in Geneva. She
is currently a GDL student in London.

Pregnancy Discrimination in the Australian Workplace


By Dominique Allen | 24th June 2014

As part of its national review into pregnancy discrimination in the workplace, the Australian Human Rights Commission (AHRC)
released data from a national phone survey measuring discrimination in the workplace related to pregnancy, parental leave and
return to work following parental leave. The figures are staggering.
49% of mothers reported that they had experienced discrimination in the workplace. 27% experienced discrimination during
pregnancy, 32% when they requested parental leave and 35% said they experienced discrimination when they returned to work.
Just as alarming is the type of discrimination experienced during pregnancy 37% were threatened with dismissal, were dismissed
or their contract was not renewed, and 49% were discriminated against in relation to pay, conditions and duties. More than a
quarter of fathers and partners who exercised their legislative entitlement to 2 weeks paid parental leave reported experiencing
discrimination either during the period of leave or when they returned to work.
These figures are even more alarming considering that federal law has prohibited pregnancy discrimination in the workplace since
1983.
Pregnancy discrimination is also unlawful under state and territory laws, so is workplace discrimination based on family or carers
responsibilities. Since 2009, pregnancy discrimination has been unlawful under federal industrial relations legislation. Male and
female employees who are the primary caregiver for a child are entitled to 12 months unpaid leave and can request an additional
12 months and flexible working conditions when they return to work. Theyre also protected from adverse action, such as
threatened dismissal, for exercising these rights.
Yet this data clearly shows that workplace discrimination remains a problem and that employees arent turning to the law for a
solution. Although 75% of women took action in response to the discrimination, only 13% sought legal advice and only 10% made a
complaint to a government agency. 25% looked for another job and 24% resigned.
Given that it is challenging enough to utilise anti-discrimination laws (for reasons such as the burden of proof on the employee, low
damages claims and high legal costs), it is not surprising that women who are pregnant or returning to work with a young family are
choosing not to pursue legal action.
But that presumes theyre aware of their rights. Under federal industrial relations legislation, employers must give all new
employees an information sheet outlining their minimum entitlements. Theres no reason information about unlawful discrimination
couldnt be distributed at the same time. The AHRCs report and recommendations are due next month. It should recommend
a national government funded advertising campaign to make employees aware of their rights and employers aware of their
responsibilities. Governments do so for workplace safety, so why not for workplace discrimination?
Australia has used education as the primary means of encouraging compliance with anti-discrimination laws but education alone

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is not enough. Modern regulatory theory says businesses are more likely to comply if there is a threat that action can and will be
taken against them if they dont.
This is the model the industrial relations regulator, the Fair Work Ombudsman (FWO), has used since it was established in 2009. As
well as having education campaigns, such as its 2012-13 campaign targeting working parents, the FWO can investigate complaints
about workplace discrimination and take action to enforce the law. It can reach enforceable undertakings in which an employer
will agree to change policies and practices and the FWO will agree not to take further court action. By March 2014, the FWO had
entered into 7 enforceable undertakings in discrimination matters. 3 were instances of pregnancy discrimination. The FWO can
litigate on behalf of employees and seek the imposition of a civil penalty against the employer of up to $10,200 for individuals
and $51,000 for a corporation. As at March 2014, 5 of the 7 discrimination matters the FWO had litigated were about pregnancy
discrimination and in each the employer was ordered to pay a civil penalty.
There is no reason a stronger enforcement model like this couldnt be adopted for the federal anti-discrimination Acts.
The previous federal government took the first step by asking the AHRC to gather the evidence about the degree to which
discrimination remains a problem for parents in the workplace. The Abbott government must take the next step and give the AHRC
the power and resources to do something to address this problem.
Dr Dominique Allen is a Senior Lecturer at Deakin University, Melbourne, Australia and teaches and researches anti-discrimination
law and labour law.

Recognising Maternity Leave as a Human Rights Obligation


Meghan Campbell | 15th September 2014

Paid maternity leave is routinely argued as necessary to achieve gender equality in the workplace. Article 11(2)(b) of the
Convention on the Elimination of All forms of Discrimination against Women (CEDAW) requires States to introduce maternity leave
with pay or comparable social benefits. The six individuals in Elisabeth de Blok et al v The Netherlands (CEDAW/C/57/D/36/2012)
argued the State violated this obligation by not providing maternity leave to self-employed women.
In 2004 The Netherlands passed legislation which disqualified previously eligible self-employed women from receiving public
maternity benefits. These self-employed women were forced to take out private insurance to cover their loss of income during
maternity leave. There were two problems with the private insurance model: (i) the policies applied a two-year exclusion period
for new subscribers during which no maternity benefits could be paid and (ii) the premiums under the private schemes were cost
prohibitive such that the claimants could not afford to take out insurance. For one of the claimants the monthly premium was equal
to her income (para 2.14). In 2008, The Netherlands re-instated public funds to cover maternity leave for self-employed women but
there were no transition provisions. The six claimants gave birth in the time before the re-instatement and before the end of the two

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year exclusionary period for private insurance, so even if they could afford it they would have been barred.
The claimants argued CEDAW obligated The Netherlands to ensure that all women who perform paid work are entitled to a period
of paid leave and this included women who were self-employed (para 3.6). The State countered that CEDAW only required them
to take appropriate measures which they interpreted as only requiring a best-efforts obligation and does not lay down clear rules
on how to pursue maternity leave (para 4.10). They argued the margin of appreciation in CEDAW does not specify the forms
or associated conditions with maternity leave. This means The Netherlands can restrict paid maternity leave to women in formal
employment and can introduce a public scheme or leave it to the private sector. (para 4.13).
The Committee correctly rejects the States arguments. It adopts an expansive or living tree interpretation of Article 11(2)(b) which
covers self-employed women (para 8.4). This is important for the evolution of CEDAW as it ensures Article 11 is interpreted to
protect new and different kinds of employment relationship. The Committee concludes that failing to provide maternity benefits is a
direct form of gender based discrimination and violates CEDAW (para 8.9). It is recommended that the State compensate the six
complaints and other women who are in a similar position.
This is an important development in womens human rights. The Committee firmly establishes that States have a legal obligation
to provide women with maternity leave. This case is also an important contribution to the jurisprudence of the Committee, as they
reject an interpretation that treats the obligations in CEDAW as policy directives. The substantive provisions require more than best
efforts. There are human rights obligations that can be monitored and evaluated against standards of gender equality.
At the same time, however, the Committee misses out an opportunity to fully flesh out the obligation to provide maternity leave.
This case raises a challenging question: does Article 11(2)(b) allow the State to use the private sector to provide maternity leave?
This is a pressing question because public services are important in meeting women needs and there is a growing trend towards
privatization. The Committee does not explicitl